I examine how deferred-prosecution agreements employed against suspected corporate criminality amount to a form of social engineering that infringes the presumption. I begin with a broad understanding of the presumption itself. Then I offer a brief description of how these agreements function. Finally I address some of the normative issues that must be confronted if legal philosophers who hold retributivist views on punishment and sentencing hope to assess this device. My judgment tends to be favorable. More importantly, I caution against (...) the facile assumption that any means to infringe the presumption is necessarily an illegitimate part of penal practice. (shrink)
I focus on the set of problems that arise in identifying both the actus reus and (to an even greater extent) the mens rea needed by an abettor before she should be criminally liable for complicity in a crime. No consensus on these issues has emerged in positive law; commentators are enormously dissatisfied with the decisions courts have reached; and critics disagree radically about what reforms should be implemented to rectify this state of affairs. I explicitly deny that I will (...) be able to solve these problems, although I hope at least to identify a central source of the confusion. In my view, the problem results largely from conceptualizing the liability of abettors as derivative. This diagnosis helps us to understand why the problem is likely to remain insoluble in positive law. If the test of an adequate theory consists primarily in its ability to produce results that conform to our moral intuitions about how particular cases should be resolved, no approach that can be implemented in the real world will prove wholly satisfactory. I advance a hypothesis about why failure is inevitable and what should be done in light of this predicament. Legal realities compel us to adopt a position that is suboptimal from a moral point of view. (shrink)
I defend two objections to Tadros’s views on punishment. First, I allege that his criticisms of retributivism are persuasive only against extreme versions that provide no justificatory place for instrumentalist objectives. His attack fails against a version of retributivism that recognizes a chasm between what offenders deserve and the allthings-considered permissibility of treating offenders as they deserve. Second, I critique Tadros’s duty view – his alternative theory of punishment. Inter alia, I object that he derives principles from highly unusual examples (...) of self-defense he subsequently tries to apply to ordinary cases of punishment. (shrink)
Larry Alexander and Peter Westen each critically examine different topics from my recent collection of essays, The Philosophy of Criminal Law. Alexander focuses on my “Rapes Without Rapists,” “Mistake of Law and Culpability,” and “Already Punished Enough.” Westen offers a more extended commentary on my “Transferred Intent.” I briefly reply to each critic in turn and try to extend the debates in new directions.
I tackle the difficult problem of specifying how voluntary intoxication affects criminal culpability generally and recklessness in particular. I contend that the problem need not be conceptualized as an instance of actio libera in causa, namely the situation in which persons do something at t1 to culpably create the conditions of their own defense at t2. Instead, I argue that we need only consider intoxicated defendants at t2 in order to justify their punishment. In the course of defending my view, (...) I challenge conventional wisdom about both the nature of recklessness and the effects of intoxicants. I conclude by discussing a possible ground on which involuntary intoxication might be treated differently. (shrink)
Gideon Yaffe is to be commended for beginning his exhaustive treatment by asking a surprisingly difficult question: Why punish attempts at all? He addresses this inquiry in the context of defending (what he calls) the transfer principle: “If a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” I begin by expressing a few reservations about the transfer principle itself. But my main point is that we are justified (...) in punishing attempts only when and for a different reason than Yaffe provides. I argue that attempts are legitimately punished only when they raise the risk that a harm will actually occur. To overcome the problems my explanation encounters with factually impossible attempts, I suggest an account of risk that relies on ordinary language and possible worlds. (shrink)
Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited (...) kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)
When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. (...) I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law. (shrink)
Does criminal liability require an act? -- Motive and criminal liability -- The costs to criminal theory of supposing that intentions are irrelevant to permissibility -- Transferred intent -- The nature and justifiability of nonconsummate offenses -- Strict liability, justice, and proportionality -- The sequential principle of relative culpability -- Willful ignorance, knowledge, and the equal culpability thesis : a study of the significance of the principle of legality -- Rapes without rapists : consent and reasonable mistake -- Mistake of (...) law and culpability -- On the supposed priority of justification to excuse -- Partial defenses -- The "but everybody does that!" defense -- The de minimis "defense" to criminal liability -- Why punish the deserving -- Malum prohibitum and retributivism -- Already punished enough. (shrink)
I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).
Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of the harm principle.
Husak's primary goal is to defend a set of constraints to limit the authority of states to enact and enforce criminal offenses. In addition, Husak situates this endeavor in criminal theory as traditionally construed. This book urges the importance of this topic in the real world, while most Anglo-American legal philosophers have neglected it.
I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalizationâto what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the criminal law at (...) any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justiceâif the state ceased to impose punishments. (shrink)
In this article I examine one condition a minimalist theory of criminalization might contain: the criminal law should be used only as a last resort. I discuss how this principle should be interpreted and the reasons we have to accept it. I conclude that a theory of criminalization should probably include the (appropriately construed) last resort principle. But this conclusion will prove disappointing to those who hope to employ this principle to bring about fundamental reform in the substantive criminal law. (...) I argue that the last resort principle may not help to reverse the growth of the criminal law to any degree that could not be achieved more directly and less controversially by other principles that a theory of criminalization is generally thought to include. Unless we reject others parts of conventional wisdom about crime and punishment, the application of a last resort principle is unlikely to bring about sweeping changes that theorists might have anticipated. (shrink)