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Most criminal law defenses serve the criminal law's goal of shielding blameless defendants from liability. Justification defenses, such as selfdefense and law enforcement authority, exculpate on the ground that the defendant's conduct, on balance, does not violate a societal norm. Excuse defenses, such as insanity and duress, exculpate on the ground that, while the defendant may well have violated a societal norm, it was done blamelessly. That is, it is the excusing conditions, not the defendant, that is to blame. In contrast, a third group of general defenses, which have been called "non-exculpatory defenses," bar liability in instances where the defendant may have clearly violated a societal norm with full blameworthiness yet nonetheless is exempt from criminal liability because giving the exemption advances some societal interest independent of--and in conflict with--the criminal law's goal of imposing deserved punishment in proportion to an offender's blameworthiness. Non-exculpatory defenses openly sacrifice doing justice in order to promote the competing non-justice interest. A wide variety of non-exculpatory defenses are commonly recognized, including, for example, statutes of limitation, executive and legislative immunities, double jeopardy, diplomatic immunity, and the doctrines of the legality principle. Each of these defenses let blameworthy offenders go free even for serious crimes because such restraint promotes or protects some non-desert societal interest. Our examination of the doctrines suggests, however, that those balances of competing interests are commonly misaligned. This occurs in some instances because societal circumstances have significantly changed since the initial formulation of the defense, without any corresponding revision of the doctrine. In other instances, there is reason to suspect that no thoughtful balancing of the competing interests ever took place, perhaps because at the time there was insufficient appreciation of the practical importance of doing justice and the societal costs of regular failures of justice. In this article, we illustrate the problem by examining the three most commonly used non-exculpatory defenses: statutes of limitation, the double jeopardy rule, and the legality principle's rule of strict construction. We acknowledge that each of these defenses was created to promote or protect an important societal interest. But we show that in each instance the societal circumstances have changed, altering the balance of competing interests, yet the formulation of the doctrines has not been adjusted accordingly. Our larger conclusion is that non-exculpatory defenses, based as they are upon a balance of competing societal interests, rather than principles of societal harm and personal blameworthiness, require constant re-examination and adjustment in ways that justification and excuse defenses do not. [ABSTRACT FROM AUTHOR]

In judging an offender's culpability, initigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into accozint 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 syndroine. 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. Iii between these two clear points, however, exists a large collection of individual oil fender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account. Should our assessnient of an offender's criminal liabilitx be adjusted fur 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 indiviclualize 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 justification, duress. and involuntary intoxication. Indeed, it turns out that the problem of individualizing factors is present, if often obscured, iii all criminal law doctrines of culpability, mitigation, and excuse. The Article reviews the appeal of criminal law aclhering 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 stanclard iii 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. [ABSTRACT FROM AUTHOR]

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice, and avoiding injustice. Moreover, there are compelling reasons to demand consistency between community views and criminal law rules, including respect for democratic values, effective crime-control, and the deontological value of justice itself. It may then come as a surprise, and a disappointment, that a wide range of common rules in modern criminal law conflict with community justice judgments, including three strikes and other habitual offender statutes, abolition or narrowing of the insanity defense, adult prosecution of juveniles, felony murder, strict liability offenses, and a variety of other common doctrines. In short, democratically elected legislatures have regularly chosen to adopt criminal law rules that conflict with the deep and abiding intuitions of their constituents. We endeavor to explain how this incongruent situation has arisen. Using the legislative and political histories of the doctrines noted above, we document four common causes: legislative mistake about the community’s justice judgments, interest group pressure, prioritizing coercive crime-control mechanisms over doing justice and legislative preference for delegating some criminalization decisions to other system actors, such as prosecutors and judges. Analysis of these reasons and their dynamics suggests specific reforms, including a legislative commitment to reliably determine community judgment before enactment and to publicly explain the reasons for enacting any criminal law rule that conflicts. Creation of a standing criminal law reform commission would be useful to oversee the social science research and to help hold the legislature to these public promises. [ABSTRACT FROM AUTHOR]

Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this "blank slate" conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions consistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views. Many writers dispute that such core principles exist. It is a common view that people's justice judgments are personal to them or perhaps to their small group. If this were true, it would present an obstacle if not a permanent barrier to the creation of a criminal code that has legitimacy and moral credibility for those it covers. But an investigation of the evidence from a wide variety of sources suggests that there is a set of core principles upon which humans generally agree. This article examines six potential indicators of core principles: principles on which empirical studies suggest a high level of agreement across demographics within society, principles on which empirical studies suggest agreement cross-culturally, principles emerging early in the historical development of formal criminal law, principles reflected in the universal path of child development, principles reflected in the behavior of social animals, and rules and principles regularly appearing in natural experiments of human groups beyond the reach of the law. I identify nine principles with support from most or all of these sources and that properly qualify as near universal core principles. One might speculate about why such core principles exist, and the article does, but whatever the reason--be it an evolutionarily created genetic predisposition or a process of generalized learning common to all social groups--the existence of such core principles has important and diverse practical implications: in suggesting reduced crime-control effectiveness where the criminal law conflicts with a core principle, in setting limitations on and strategies for social reform, in supporting a broader use of restorative justice, in suggesting a more nuanced application of the legality principle, in supporting the recognition of a general mistake of law defense and a mitigation for partial excuses, in assessing the feasibility of creating an international criminal law or of creating a criminal law for a territory now being created whose population does not yet exist, and even in planning initial contact with extraterrestrial beings. [ABSTRACT FROM AUTHOR]

Although an offender's conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision makers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction; the debtpaid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed); the reformed offender, who takes affirmative steps to leave criminality behind; and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed. [ABSTRACT FROM AUTHOR]

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses. After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay proposes a particular method of drafting criminal offenses--consolidated offense drafting--and then shows how this drafting approach is the best and perhaps the only effective means of solving the problems. Potential political resistance to the proposal is discussed. [ABSTRACT FROM AUTHOR]

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers, but also crime-control utilitarianism. It accomplishes the latter by enhancing the criminal law's moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the resistance and subversion that is provoked by perceived violations of blameworthiness proportionality. Such a principle has been commonly used as the basis for criticizing improper aggravations, such as the doctrines of felony murder and "three strikes," but the principle also logically requires recognizing a full range of deserved mitigations, not as a matter of grace or forgiveness but as a matter of entitlement. And given ordinary people's nuanced judgments about blameworthiness proportionality, maintaining moral credibility with the community requires that the criminal law adopt an equally nuanced system of mitigations. Such a nuanced system ideally would include reform of a wide variety of current law doctrines and, especially in the absence of such specific reforms, adoption of a general mitigation provision that aims for blameworthiness proportionality in all cases. Such a general mitigation ought not be limited to cases of "heat of passion" or murder, as today's liability rules commonly provide. Rather, it ought to be available whenever the offense circumstances and the offender's situation and capacities meaningfully reduce the offender's blameworthiness, as long as giving the mitigation does not specially undermine community norms. [ABSTRACT FROM AUTHOR]

This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required culpable state of mind that he may not actually have had at the time of the offence; the effect of involuntary intoxication in providing a defence by negating a required offence culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible for creating his own addiction. It notes some of the differences between the US and UK approaches on some issues. [ABSTRACT FROM AUTHOR]

The article discusses some features and objectives of the U.S. Model Penal Code that define rules needed to adjudicate criminal liability and to set the level of seriousness of each offense. Topics discussed include different hallmarks of the Penal Code such as comprehensiveness, orderliness, and principled; importance of principled nature of a code; and degradation of existing criminal law in the country as of January 2015.

The article offers information on the effect of mental illness under the U.S. criminal law. Topics discussed include the effect of the mental illness which has been formulated in different ways for the insanity defence, the mental disability which is preventing the defendant from understanding the wrongfulness of his or her conduct, and criticism of McNaghten test to reflect advances in the behavioural sciences.

Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use. There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its rules are perceived as obviously unjust. This common sense perspective is supported by social science research showing the importance of law's moral credibility in gaining assistance and compliance, in reducing resistance and subversion, and in helping to shape shared norms. The current practice of victim states ignoring legal limitations, with studied indifference to such "violations" by the international community, only legitimizes and habituates law-breaking, further undermining international law's moral credibility. One important opportunity for reforming international law is currently being squandered. The Assembly of State Parties to the International Criminal Court has recently approved a resolution defining the international crime of aggression. However, rather than confront international law's existing problems, the drafters compounded them by imposing individual criminal liability on leaders of victim states who authorize defensive force in violation of flawed current law. Fortunately, the resolution will not go into effect until 2017 at the earliest. There is still time to change course. [ABSTRACT FROM AUTHOR]

The article discusses the punishment theory in U.S. criminal law. The Model Penal Code that was promulgated by the American Law Institute in 1962 was amended in 2008. The article asks how a criminal justice system should determine who to be punished and how to punish. It also discusses the distributive principle in criminal punishment which includes incapacitation, rehabilitation and deterrence.

The crime of blackmail has risen to national media attention because of the David Letterman case, but this wonderfully curious offense has long been the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions. This Article summarizes the results of an empirical study designed to test the competing theories of blackmail to see which best accords with prevailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as "the" key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople's moral judgment. Blackmail is not only a common subject of scholarly theorizing but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. The Article reviews the American statutes and describes the three general approaches these provisions reflect. The empirical study of lay intuitions also allows an assessment of which of these statutory approaches (if any) captures the community's views, thereby illuminating the extent to which existing law generates results that resonate with, or deviate from, popular moral sentiment. The analyses provide an opportunity to critique the existing theories of blackmail and to suggest a refined theory that best expresses lay intuitions. The present project also reveals the substantial conflict between community views and much existing legislation, indicating recommendations for legislative reform. Finally, the Article suggests lessons that such studies and their analyses offer for criminal law and theory. [ABSTRACT FROM AUTHOR]

The article presents an analysis on the ideas of articles with different coauthors including "Concordance and Conflict in Institutions of Justice," "The Origins of Shared Institutions of Justice," and "Intuitions of Justice: Implications for Criminal law and Justice Policy." It provides an overview of the criticisms of professors concerning the intuitions of justice particularly Dan Kahan. Furthermore, it also discusses the value of Punishment Realism and Punishment Naturalism.

Two experiments (N = 71) compare lay standards of insanity to standards incorporated in American legal codes. In Experiment 1, case vignettes provided only legally relevant information about defendants' degrees of impairment in cognition or in behavioral control. Respondents' judgments of criminal liability or not guilty by reason of insanity (NGRI) reflected an exculpatory standard of substantial impairment in both cognition and control. In Experiment 2, case vignettes provided realistic information about defendants' psychiatric diagnoses; respondents had to infer levels of cognitive and control impairment. Results showed that respondents made highly idiosyncratic inferences based on diagnostic categories, but once made, these inferences predicted NGRI judgments. Implications of the concordance between laypeople's rules for assigning NGRI verdicts and the rules used in American legal codes are discussed. [ABSTRACT FROM AUTHOR]

A foreword to the "Criminal Law Forum" journal is presented.

This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform. [ABSTRACT FROM AUTHOR]