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Full-Text Articles in Law
Internal And External Challenges To Culpability, Stephen J. Morse
Internal And External Challenges To Culpability, Stephen J. Morse
All Faculty Scholarship
This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.
The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …
Proportionality, Constraint, And Culpability, Mitchell N. Berman
Proportionality, Constraint, And Culpability, Mitchell N. Berman
All Faculty Scholarship
Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones. This essay proposes that these differences cannot be successfully adjudicated, and one …
Blameworthiness, Desert, And Luck, Mitchell N. Berman
Blameworthiness, Desert, And Luck, Mitchell N. Berman
All Faculty Scholarship
Philosophers disagree about whether outcome luck can affect an agent’s “moral responsibility.” Focusing on responsibility’s “negative side,” some maintain, and others deny, that an action’s results bear constitutively on how “blameworthy” the actor is, and on how much blame or punishment they “deserve.” Crucially, both sides to the debate assume that an actor’s blameworthiness and negative desert are equally affected—or unaffected—by an action’s results. This article challenges that previously overlooked assumption, arguing that blameworthiness and desert are distinct moral notions that serve distinct normative functions: blameworthiness serves a liability function (removing a bar to otherwise impermissible treatments), whereas desert serves …
Against The Received Wisdom: Why The Criminal Justice System Should Give Kids A Break, Stephen J. Morse
Against The Received Wisdom: Why The Criminal Justice System Should Give Kids A Break, Stephen J. Morse
All Faculty Scholarship
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 not because on average they have different capacities relevant to responsibility than adults, but 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 …
Special Issue, December 2018
International Journal on Responsibility
Contents:
5 – 7 Terry Beitzel, Gjylbehare Muharti, and Hysen Nimani, Responsibility in the Balkans: Justice, Media and Arts.
8 – 22 Mujë Ukaj and Qendresa Jasharaj, International Criminal Responsibility in Kosovo: Establishment of the International Criminal Court - de lege lata, de lege ferenda.
23 – 41 Avdullah Robaj and Sabiha Shala, Responsibility in Building Rule of Law: Kosovo Challenges.
42 – 54 Mujë Ukaj, The Irresponsible Persons: the Imposition and Execution of the Mandatory Treatment Measures on Criminal Procedure of Kosovo.
55 – 64 Gani Asllani, Bedri Statovci, and Gentiana Gega, Development and Protection of Economic …
Volume 1, Issue 2 (2017) Inaugural Issue
Volume 1, Issue 2 (2017) Inaugural Issue
International Journal on Responsibility
Contents:
Introduction: Terry Beitzel, Types of Responsibility: Challenges and Opportunities
3 – 5 Howard Zehr, Restorative Justice and the Gandhian Tradition.
6 – 26 Richard E. Rubenstein, Responsibility for Peacemaking in the Context of Structural Violence.
27 – 64 Marc Pufong, Terror, Insecurity, State Responsibility and Challenges: Yesterday and Today?
65 – 77 Ron Kraybill, Responsibility, Community and Conflict Resolution in an Age of Polarization.
78 – 96 John Fairfield, Beyond non-violence to courtship.
97 – 98 Call for papers for forthcoming issues of the International Journal on Responsibility and instructions for authors.
Acknowledgments, Howard S. Carrier
Acknowledgments, Howard S. Carrier
International Journal on Responsibility
Serious work to bring the International Journal on Responsibility to life commenced during the summer of 2015. In the intervening period between conceptualization and publication, many organizations and individuals within James Madison University and the wider community have contributed enormously to bringing the journal to fruition.
Who Is Responsible For Ethical Legal Education, For What And To Whom? Case Of Kosovo, Sabiha Shala, Gjylbehare Muharti
Who Is Responsible For Ethical Legal Education, For What And To Whom? Case Of Kosovo, Sabiha Shala, Gjylbehare Muharti
International Journal on Responsibility
Legal education continues to be one of the most demanded areas of study from the younger generation in Kosovo. As result, the number of law graduates is quite high. On the other hand, the rule of law sector is quite fragile, judges and lawyers are perceived by parts of the society to be ethically dysfunctional. The trust in judicial institutions is quite low. The debate which is going on now is whose main responsibility for such a situation that is. Is the duty of the higher education institutions providing legal education, or is it a responsibility of educational institutions at …
Resolving The Paradox Of Holding People Responsible, Hal Pepinsky
Resolving The Paradox Of Holding People Responsible, Hal Pepinsky
International Journal on Responsibility
Regardless of justification, it is commonplace throughout the U.S. criminal justice system as in everyday life to teach our offenders and children alike that wrong actions “have consequences,” namely, those authority figures promise to impose upon them. We do so in the name of holding people responsible for their actions, or in legal parlance in civil law, holding them accountable or liable. I noticed that in Norwegian, responsibility, accountability and liability translate into one word, ansvar, which I have translated from Germanic to Latin roots as “responsiveness.” In practice, the state of being responsive to others with whom one conflicts …
Political Flip-Flopping, Political Responsibility, Current Governance, And The Disenfranchised, T.Y. Okosun
Political Flip-Flopping, Political Responsibility, Current Governance, And The Disenfranchised, T.Y. Okosun
International Journal on Responsibility
No abstract provided.
What Does Responsibility Mean To Me?, Arun Gandhi
What Does Responsibility Mean To Me?, Arun Gandhi
International Journal on Responsibility
No abstract provided.
Who Is Responsible To Do What For Whom? A Letter From The Editor-In-Chief, Terry Beitzel
Who Is Responsible To Do What For Whom? A Letter From The Editor-In-Chief, Terry Beitzel
International Journal on Responsibility
No abstract provided.
Mental Disorder And Criminal Justice, Stephen J. Morse
Mental Disorder And Criminal Justice, Stephen J. Morse
All Faculty Scholarship
This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements …
Volume 1, Issue 1 (2017) Inaugural Issue
Volume 1, Issue 1 (2017) Inaugural Issue
International Journal on Responsibility
Contents:
1 – 4 Terry Beitzel, Who is Responsible to do what for Whom? A letter from the Editor-in-Chief.
5 – 20 Arun Gandhi, What Does Responsibility Mean to Me?
21 – 42 T.Y. Okosun, Political Flip-flopping, Political Responsibility, Current Governance, and the Disenfranchised.
43 – 54 Hal Pepinsky, Resolving the Paradox of Holding People Responsible.
55 – 66 Kendra A. Hollern, Dying with Dignity: Where is the Compassion in Compassionate Release Programs?
67 – 82 Sabiha Shala & Gjylbehare Muharti, Who is Responsible for Ethical Legal Education, for what and to whom? Case of Kosovo.
83 Acknowledgments.
Addiction, Choice And Criminal Law, Stephen J. Morse
Addiction, Choice And Criminal Law, Stephen J. Morse
All Faculty Scholarship
This chapter is a contribution to a volume, Addiction and Choice, edited by Nick Heather and Gabriel Segal that is forthcoming from Oxford University Press. Some claim that addiction is a chronic and relapsing brain disease; others claim that it is a product of choice; yet others think that addictions have both disease and choice aspects. Which of these views holds sway in a particular domain enormously influences how that domain treats addictions. With limited exceptions, Anglo-American criminal law has implicitly adopted the choice model and a corresponding approach to responsibility. Addiction is irrelevant to the criteria for the …
Contemporary Soviet Criminal Law: An Analysis Of The General Principles And Major Institutions Of Post-1958 Soviet Criminal Law, Chris Osakwe
Georgia Journal of International & Comparative Law
No abstract provided.
Interpreting, Stephanie Jo Kent
Interpreting, Stephanie Jo Kent
Doctoral Dissertations
What do community interpreting for the Deaf in western societies, conference interpreting for the European Parliament, and language brokering in international management have in common? Academic research and professional training have historically emphasized the linguistic and cognitive challenges of interpreting, neglecting or ignoring the social aspects that structure communication. All forms of interpreting are inherently social; they involve relationships among at least three people and two languages. The contexts explored here, American Sign Language/English interpreting and spoken language interpreting within the European Parliament, show that simultaneous interpreting involves attitudes, norms and values about intercultural communication that overemphasize information and discount …
Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale
Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale
Faculty Scholarship
In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. …
The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson
The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson
All Faculty Scholarship
This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of mental illness …
Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse
Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse
All Faculty Scholarship
This is a chapter in a book, Constitution 3.0: Freedom and Technological Change, edited by Jeffrey Rosen and Benjamin Wittes and published by Brookings. It considers whether likely advances in neuroscience will fundamentally alter our conceptions of human agency, of what it means to be a person, and of responsibility for action. I argue that neuroscience poses no such radical threat now and in the immediate future and it is unlikely ever to pose such a threat unless it or other sciences decisively resolve the mind-body problem. I suggest that until that happens, neuroscience might contribute to the reform of …
Mental Disorder And Criminal Law, Stephen J. Morse
Mental Disorder And Criminal Law, Stephen J. Morse
All Faculty Scholarship
Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, are treated specially. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal …
Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd
Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd
Reid G. Fontaine
Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative, that …
Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse
Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse
All Faculty Scholarship
This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no …