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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]

Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians' view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists' view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs. It is argued here that the two are in fact reconcilable, in a fashion. We cannot declare a winner in the distributive principle wars but something more like a truce. Specifically, good utilitarians ought to support a distributive principle based upon desert because the empirical evidence suggests that doing justice for past wrongdoing is likely the most effective and efficient means of controlling future crime. A criminal justice system perceived by the community as conflicting with its principles of justice provokes resistance and subversion, whereas a criminal justice system that earns a reputation for reliably doing justice is one whose moral credibility inspires deference, assistance, and acquiescence, and is more likely to have citizens internalize its norms of what is truly condemnable conduct. Retributivists ought to support empirical desert as a distributive principle because, while it is indeed distinct from deontological desert, there exists an enormous overlap between the two, and it seems likely that empirical desert may be the best practical approximation of deontological desert. Indeed, some philosophers would argue that the two are necessarily the same. [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.

A number of articles and empirical studies over the past decade suggest a relationship between the criminal law's reputation for being just--its "moral credibility"--and its ability to gain society's deference and compliance through a variety of mechanisms that enhance the system's crime-control effectiveness. This has led to proposals for criminal liability and punishment rules to reflect lay intuitions of justice--"empirical desert"--as a means of enhancing the system's moral credibility. In a recent article, Christopher Slobogin and Lauren Brinkley-Rubinstein (SBR) report seven sets of studies that, in their view, undermine these claims about empirical desert and moral credibility. Instead, say SBR, the studies support their own proposed distributive principle of "individual prevention." As this article shows, however, SBR have it wrong on both counts: not only do their studies actually confirm the crime-control power of empirical desert, but they provide no support for their own principle of individual prevention. Moreover, that principle, which focuses on an offender's dangerousness rather than his perceived desert, is erroneously described by SBR as "a sort of limiting retributivism." In reality, what SBR propose is a system based on dangerousness, where detention decisions are made at the back end by experts. Such an approach promotes the worst of the failed policies of the 1960s, and conflicts with the modern trend of encouraging more community involvement in criminal punishment, not less. [ABSTRACT FROM AUTHOR]

The article reflects on the aims and conflicts regarding the legitimacy of a criminal justice system that derives practical value by generating societal perceptions of fair enforcement and adjudication. It mentions that perceptions of fair enforcement may promote systemic compliance with substantive law. It further cites several literatures which suggest that a criminal justice system derives practical value by distributing criminal liability.

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]

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision-the only amendment to the Model Code in the fortyeight years since its promulgation-adopts desert as the primary distributive principle for criminal liability and punishment. That shift to desert has prompted concerns by two groups that, ironically, have been traditionally opposed to each other. The first group-those concerned with what they see as the over-punitiveness of current criminal law-worries that setting desert as the dominant distributive principle means continuing the punitive doctrines they find so objectionable, and perhaps making things worse. The second group-those concerned with ensuring effective crime control-worries that a shift to desert will create many missed crime-control opportunities and will increase avoidable crime. The first group's concern about over-punitiveness rests upon an assumption that the current punitive crime-control doctrines of which it disapproves are a reflection of the community's naturally punitive intuitions of justice. However, as Study 1 makes clear, today's popular crime-control doctrines in fact seriously conflict with people's intuitions of justice by exaggerating the punishment deserved. The second group's concern that a desert principle will increase avoidable crime exemplifies the common wisdom of the past half-century that ignoring justice in pursuit of crime control through deterrence, incapacitation of the dangerous, and other such coercive crime-control programs is cost-free. However, Studies 2 and 3 suggest that doing injustice has real crime-control costs. Deviating from the community's shared principles of justice undermines the system's moral credibility and thereby undermines its ability to gain cooperation and compliance and to harness the powerful forces of social influence and internalized norms. The studies reported here provide assurance to both groups. A shift to desert is not likely either to undermine the criminal justice system's crime-control effectiveness, and indeed may enhance it, nor is it likely to increase the system's punitiveness, and indeed may reduce it. [ABSTRACT FROM AUTHOR]

The article focuses on the role of moral philosophers in the competition between deontological and empirical desert. A deontological conception of desert would distribute criminal liability and punishment differently than would an empirical conception of desert, based on empirical research into the shared intuitions of justice of the community. Reliance on empirical conception of desert in the distribution of criminal liability and punishment prompts its own set of complaints.

The article presents the author's comments over the views of Prof. Kimberly Kessler Ferzan on self-defense. According to the author, the aspect of Prof. Ferzan's insight on self-defense only restates the obvious reason for having a mistake-as-to-a-justification excuse in order to insure that an actor's blameworthiness is ultimately judged by the culpability inherent in the decision. In the author's view, the justification defense is better formulated to serve a different function than the adjudication-of-blameworthiness function that Prof. Ferzan assumes it must have. Prof. Ferzan is not alone in her assumption that the justification defenses must be seen as adjudicators of blameworthiness. Most philosophers do not seem to care about how the legal rule is formulated, thinking such matters off the point. On the other hand, the general people who see the justification defenses as articulation of the rules of conduct do not care much about matters other than formulation issues. The theorizing is important only for what it tells about the proper formulation.

The article examines the distinctions between criminal law and civil law, as well as criminal commitment and civil commitment, elaborated through discussions on how offenders were treated under the present legal system. At the outset, the author has pointed out how human conduct may violate both criminal and civil law, which explains why criminal law is not unique in the conduct it punishes nor is it unique in the deprivations it imposes. To explain the importance of keeping a distinction between them, the author has explained its existence apart from its prohibitions, deprivations, or procedures. His discussion on the importance of expanding civil commitment to include seriously dangerous offenders, as well as the problem on how to address such expansion concludes the article.