Many commentators agree that the trend to try juveniles as adults fails to recognize that there should be an asymmetry in our treatment of juvenile and adult crime such that all else being equal juvenile crime deserves less punishment than does adult crime. This essay explores different rationales for this asymmetry. A political rationale claims that the disenfranchisement of juveniles compromises the state’s democratic authority to punish juveniles in the same way it is permitted to punish adults. A developmental rationale (...) claims that juveniles deserve to be punished less than adults because their immaturity makes them less responsible and, hence, less culpable for their wrongdoing. Gideon Yaffe’s new book The Age of Culpability expresses skepticism about the developmental rationale and defends a version of the political rationale. By contrast, this essay finds important limits to the political rationale and defends a qualified version of the developmental rationale. In the process, it argues against treating the asymmetry between juvenile and adult crime as a categorical one. (shrink)

Germany is joining a long list of European democracies that have modified or expressed a willingness to modify their citizenship laws to denationalize first and then prevent the return of or expel those citizens accused of having participated in terrorist activities abroad. The formal labelling of citizenship deprivation as an administrative measure outside the scope of criminal justice has prevented scholars of criminal law from undertaking a thorough scrutiny of its legitimacy. In this paper I seek to fill this gap. (...) Specifically, after demonstrating why deprivation of citizenship is a measure of a criminal nature, I argue against its legitimacy, either as a punishment or as a risk-based measure. Instead I propose that we should understand citizenship deprivation as a paradigmatic response from an illegitimate enemy criminal law. Notwithstanding the foregoing, I claim that states that choose to denationalize terrorists should do it within the framework of a process with the highest guarantees. (shrink)

This article is a contribution to a symposium on Kit Wellman’s intriguing monograph, Rights Forfeiture and Punishment. Primarily, the article grapples with Wellman’s claims regarding the moral permissibility of sadistic punishment. The metaphor of “philosophical languages” is employed throughout, to compare Wellman’s use of rights-forfeiture discourse to an approach that is grounded in practical-reasons discourse. This study in philosophical translation allows us to reassess and critique Wellman’s conclusions regarding the moral permissibility of sadistic punishment. On one level, the article is (...) an attempt to engage with Wellman’s book and rights-forfeiture based arguments on, and in, their own terms. Yet, the article is also an attempt to explain and defend a practical-reasons based approach to appraising moral permissibility. If the article succeeds, it both pays tribute to Wellman’s masterful rights-forfeiture arguments, while making the case that practical-reason arguments illuminate a wider range of salient considerations that we should wish to keep in view when considering the moral permissibility of sadistic punishments. (shrink)

This is a review essay of Lagasnerie, Judge and Punish and Fassin, The Will to Punish. It explores the way that these two books challenge conventional thinking about the relationship between crime and punishment.

Why, exactly, should we punish children who commit crimes more leniently than adults who commit the same offenses? Gideon Yaffe thinks it is because they cannot vote, and so the strength of their reasons to obey the law is weaker than if they could. They are thus less culpable when they disobey. This argument invites an obvious objection: why not simply enfranchise children, thereby granting them legal reasons that are the same strength as enfranchised adults, and so permitting similarly severe (...) punishment? Yaffe answers this question by arguing that child enfranchisement would objectionably undermine the values of political equality and self-government. This article explores some serious doubts about these arguments. It closes by questioning Yaffe’s reliance on a retributivist theory of punishment, contending that, once we reject retributivism in favor of more humane and productive alternatives, the thesis that child criminals deserve a break—which Yaffe assumes to be undeniably correct—becomes less plausible. (shrink)

In his Rights Forfeiture and Punishment, Christopher Heath Wellman argues that his preferred ‘strong’ version of rights forfeiture theory makes the moral rights of due process and a fair trial null and void for guilty offenders. They may still possess legal rights to due process, but these are not strong pre-institutional moral rights. I explain here why I disagree with Wellman. I also suggest that he is not entitled, by his own lights, to affirm strong forfeiture theory, at least in (...) our social world. (shrink)

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break because on average they have different capacities relevant to responsibility than adults. Professor Yaffe instead argues that kid should be given a break because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor (...) Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review. After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break. If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable. Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: coherence and simplicity; a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability. (shrink)

It is widely accepted that criminalization creates a prudential reason to refrain from the criminalized conduct in order to avoid punishment, and prudence is the wrong reason to refrain from wrongdoing. According to Michael S. Moore, these facts should lead us to conclude that the criminalization of wrongful conduct corrupts motives by making some who would otherwise have refrained from wrongdoing for the right reason, refrain from wrongdoing only out of prudence. This paper argues that and provide no reason to (...) believe that criminalization corrupts motives, but should instead lead us to conclude that the criminalization of wrongful conduct obscures motives by making it harder to identify those who refrain from wrongdoing for the right reason. The paper then goes on to argue that the badness of obscuring motives is a pro tanto reason against criminalizing wrongdoing. (shrink)

This paper clarifies and defends my account of the rights forfeiture theory of punishment in response to analyses by Michelle Madden Dempsey and Gerald Lang.

This is a reply to David Brink, Jeff Howard and Stephen Morse’s commentaries on my book, The Age of Culpability.

It is widely agreed that the top three Model Penal Code culpability levels suffice for criminal liability, but the fourth is controversial. And it isn’t just the particular MPC wording; that negligence should be on the list at all is controversial. My question is: What makes negligence so different? What is it about negligence that gives rise to the view that it should not suffice for criminal liability? In addressing it, I draw attention to how we conduct the debate, and (...) how our framing of the issues is shaping it. My hope is to prompt thought and discussion on just what we want the element of mens rea to provide, and to draw attention to background assumptions that shape our views of what it should take for negligence to count as a species of mens rea. (shrink)

The 2016, the UK Supreme Court case of Jogee confirmed a long-standing convention in English law. In cases where D is assisting or encouraging P to commit an offence, D will only be liable as an accessory for that offence if she intentionally assists or encourages P and if she knows the essential features of the offence. In this paper, I discuss and develop some of the arguments from Sanford Kadish’s 1996 article “Reckless Complicity.” I argue that a special sub-category (...) of complicity, namely ‘enabling’, can be done recklessly, and is sufficiently blameworthy to ground criminal liability. (shrink)

This paper introduces the Special Issue on Recklessness and Negligence. It highlights the main issues and controversies that surround these concepts and then briefly introduces each of the papers that comprise the Special Issue.

This paper introduces the Special Issue on Recklessness and Negligence. It highlights the main issues and controversies that surround these concepts and then briefly introduces each of the papers that comprise the Special Issue.

This paper introduces the Special Issue on Recklessness and Negligence. It highlights the main issues and controversies that surround these concepts and then briefly introduces each of the papers that comprise the Special Issue.

We seem to be responsible for our beliefs in a distinctively epistemic way. We often hold each other to account for the beliefs that we hold. We do this by criticising other believers as ‘gullible’ or ‘biased’, and by trying to persuade others to revise their beliefs. But responsibility for belief looks hard to understand because we seem to lack control over our beliefs. In this paper, I argue that we can make progress in our understanding of responsibility for belief (...) by thinking about it in parallel with another kind of responsibility: legal responsibility for criminal negligence. Specifically, I argue that that a popular account of responsibility for belief, which grounds it in belief’s reasons-responsiveness, faces a problem analogous to one faced by H.L.A. Hart’s influential capacity-based account of culpability. This points towards a more promising account of responsibility of belief, though, if we draw on accounts of negligence that improve on Hart’s. Broadly speaking, the account of negligence that improves on Hart’s account grounds culpability in a concern for others’ interests, whereas my account of epistemic responsibility grounds responsibility for belief in a concern for the truth. (shrink)

Mark Dsouza’s new book, Rationale-Based Defences in Criminal Law, aims to shed new light on the question of how to conceptualize justifications and excuses as defenses against criminal liability. His offers an alternative to the common account on which justifications negate the wrongness of acts whereas excuses negate only the actor’s blameworthiness but not the act’s wrongness. Instead, Dsouza contends that the justification–excuse distinction is entirely a matter of the quality of the defendant’s reasoning. His account of justifications is generally (...) compelling, although his accounts of excuses and of the moral norms underlying the criminal law are less persuasive. Overall, however, Dsouza successfully establishes his quality-of-reasoning view as a viable competitor theory of justifications and excuses. (shrink)

Richard Dagger purports to solve the problem of political obligation and the problem of punishment simultaneously, by employing the principle of fair play. Notwithstanding the valuable contribution his book makes to the philosophical debate, I argue that Dagger does not defeat long-standing objections faced by fair play-based justifications of the duty to obey the law and of state punishment.

Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and Kimberley Kessler Ferzan say that risk in criminal recklessness ought to be constituted by the subjective belief of the person whose action is being evaluated: the gravity of the harm risked and its probability of resulting is what the person believed it to be, not what it actually was. This means that recklessness can be (...) found in the absence of any “real” risk. This article critiques the authors’ argument for subjective risk in recklessness. They exaggerate the arbitrariness in identifying risk non-subjectively and do not sufficiently acknowledge risk as an inter-subjectively constituted practical concept. Fixing risk subjectively, as advocated by the authors, nonetheless may appear useful for inchoate criminal liability. The article considers and rejects this idea of occasionally subjectivising risk in recklessness. (shrink)

Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and Kimberley Kessler Ferzan say that risk in criminal recklessness ought to be constituted by the subjective belief of the person whose action is being evaluated: the gravity of the harm risked and its probability of resulting is what the person believed it to be, not what it actually was. This means that recklessness can be (...) found in the absence of any “real” risk. This article critiques the authors’ argument for subjective risk in recklessness. They exaggerate the arbitrariness in identifying risk non-subjectively and do not sufficiently acknowledge risk as an inter-subjectively constituted practical concept. Fixing risk subjectively, as advocated by the authors, nonetheless may appear useful for inchoate criminal liability. The article considers and rejects this idea of occasionally subjectivising risk in recklessness. (shrink)

Recklessness involves unreasonable/unjustified risk-taking. The argument here is that recklessness in the criminal law is best understood as nevertheless containing an element of reasonableness. To be reckless, on this view, the defendant must reasonably believe that she is exposing others to a risk of harm. If the defendant’s belief about the risk being imposed by her conduct is unreasonable, she should not be considered reckless. This point is most important in relation to offences of endangerment where recklessness sets the outer (...) limits of criminal liability. (shrink)

Negligence reminds us that we often do and cause things unawares, occasionally with grave results. Given the lack of foresight and intention, some authors argue that people should not be judged culpable for negligence. This paper offers a contrasting view. It argues that gaining control is itself a fundamental responsibility, with both collective and individual elements. The paper underlines both sides, focussing on how they relate as we ascribe responsibility or culpability. Following the introduction, Section 2 argues that conscious awareness (...) is neither necessary nor sufficient for control. Control is not a property of deliberate choice, so much as a practical achievement. Section 3 stresses the collective aspects of non-negligence: creating knowledge about risks, structuring environments to guard against them, and developing standards of care. Failings in the collective task, rather than lack of individual control, mean it can often be unfair to pin culpability on a single individual. Section 4 suggests that a basic duty of a responsible person is to acknowledge the ways in which we may do more or less than we mean to, often in ways that create risks. It then sketches an approach to culpability as part of a collective exercise: as we take responsibility for standards of care, and for our own and others’ agency. (shrink)