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Full-Text Articles in Jurisprudence
Criminal Acts And Basic Moral Equality, John A. Humbach
Criminal Acts And Basic Moral Equality, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …
Objective Punishment, Anthony M. Dillof
Objective Punishment, Anthony M. Dillof
Law Faculty Research Publications
Should the punishment fit the criminal as well as the crime? The article argues that idiosyncratic features of the criminal that might affect subjective punishment experience should not be considered when assessing the severity of the punishment for proportionality purposes.
Entitlement To Punishment, Kyron J. Huigens
Entitlement To Punishment, Kyron J. Huigens
Articles
This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.
An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …
Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie
Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie
All Faculty Scholarship
This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section …
Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Faculty Scholarship
No abstract provided.