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Full-Text Articles in Jurisprudence

Against Life Without Parole, Judith Lichtenberg Jan 2019

Against Life Without Parole, Judith Lichtenberg

Washington University Jurisprudence Review

We have many good reasons to abolish life without parole sentences (LWOP, known in some countries as whole life sentences) and no good reasons not to. After reviewing the current state of LWOP sentences in the United States, I argue that the only rationale for punishment that can hope to justify them is retributivism. But even if retributivism is a sound principle, it in no way entails life without parole. One reason is that unless one believes, like Kant, that appropriate punishments must be carried out whatever the circumstances, we must acknowledge that other considerations are relevant to determining punishments ...


Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt Jan 2019

Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt

Washington University Jurisprudence Review

There is an intractable paradox in the relation between rights and criminal punishment. Criminal punishment frequently conflicts with rights; people typically have identical rights within a legal system, yet the punished are unable to exercise the rights to the same extent as other people. But criminal punishment, in conjunction with criminal laws, also operates to protect rights. To clarify the tension between rights and punishment, I start by analyzing the content and purpose of rights. Next I discuss the nature of rules and the particular types of rules that make up a typical “systems of rules.” I then argue that ...


Neuroscience, Justice, And The "Mental Causation" Fallacy, John A. Humbach Jan 2019

Neuroscience, Justice, And The "Mental Causation" Fallacy, John A. Humbach

Washington University Jurisprudence Review

Mental causation is a foundational assumption of modern criminal

justice. The law takes it for granted that wrongdoers “deserve”

punishment because their acts are caused by intentions, reasons and other

mental states. A growing body of neuroscience evidence shows, however,

that human behavior is produced by observable physiological activity in

the brain and central nervous system—all in accordance with ordinary

physical laws. Beyond these ordinary physiological interactions and

processes, no hypothesis of mental causation is required to causally

explain behavior.

Despite the evidence, neuroskeptics insist that intentions, reasons and

other mental states can play a causal role in producing ...


Do Criminal Background Checks In Hiring Punish?, Michael A. C. Lee Jan 2017

Do Criminal Background Checks In Hiring Punish?, Michael A. C. Lee

Washington University Jurisprudence Review

Criminal background checks in the hiring process make it more difficult for former offenders to obtain employment at their market skill level. As a result, many former offenders end up underemployed or unemployed altogether. This obstacle to finding gainful employment is a harm, and this harm directly follows from a former offender’s criminal conviction. The harm can therefore be thought of as part of the punishment imposed on criminal offenders. However, unlike the formal punishment that a criminal offender receives through his sentence, the harm that follows the offender as he seeks employment after he has completed his formal ...


Power, Knowledge, And Relationships Within The Federal Sentencing Guidelines: A Foucauldian Critique, Timothy Noonan Jan 2017

Power, Knowledge, And Relationships Within The Federal Sentencing Guidelines: A Foucauldian Critique, Timothy Noonan

Washington University Jurisprudence Review

No abstract provided.


Criminal Responsibility And Causal Determinism, J. G. Moore Jan 2016

Criminal Responsibility And Causal Determinism, J. G. Moore

Washington University Jurisprudence Review

In analytical jurisprudence, determinism has long been seen as a threat to free will, and free will has been considered necessary for criminal responsibility. Accordingly, Oliver Wendell Holmes held that if an offender were hereditarily or environmentally determined to offend, then her free will would be reduced, and her responsibility for criminal acts would be correspondingly diminished. In this respect, Holmes followed his father, Dr. Holmes, a physician and man of letters. Similar theories, such as neuropsychological theories of determinism, continue to influence views on criminal responsibility, although such theories do not imply that it is physically impossible for accused ...


Kant’S Categorical Imperative And Mandatory Minimum Sentencing, Craig Turner Jan 2016

Kant’S Categorical Imperative And Mandatory Minimum Sentencing, Craig Turner

Washington University Jurisprudence Review

Deterrence-based punishment systems are scattered throughout history, and exist in the American legal system today. One such method of deterrence prescribes mandatory punishments for violations of certain crimes, without regarding to underlying circumstances or an assessment of the the individual accused of such crimes. These types of sentencing requirements restrict judicial discretion and are designed to serve as an example for other would-be offenders. While perhaps justifiable under a utilitarian code of ethics, mandatory minimums are morally suspect when assessed through the lens Immanuel Kant’s Categorical Imperative.

The fundamental premise of the second formulation of Kant’s Categorical Imperative ...


Cruel And Unusual What? Toward A Unified Definition Of Punishment, Raff Donelson Jan 2016

Cruel And Unusual What? Toward A Unified Definition Of Punishment, Raff Donelson

Washington University Jurisprudence Review

This Article argues for an expanded understanding of legal punishment for American courts to use. Punishment, on this new view, includes all significant harm caused by state actors’ retributive intent and most significant harm that befalls someone as a result of the state seeking retribution against her. What commends this new definition is not that it tracks lexicographers’ or metaphysicians’ understandings of punishment; rather, this new definition aims to track relevant moral and political considerations. Importantly, the proposed definition results from an attempt to reason from the perspective of someone harmed by state practices, as that perspective has greater moral ...


Is It Fair To Criminalize Possession Of Firearms By Ex-Felons?, Zack Thompson Jan 2016

Is It Fair To Criminalize Possession Of Firearms By Ex-Felons?, Zack Thompson

Washington University Jurisprudence Review

Steven Gomez was being held in the county jail when he learned that he had been acquitted of the charges against him. Upon hearing that Gomez would be released shortly, Imran Mir, a fellow inmate who had been charged with participating in an international drug conspiracy, offered Gomez $10,000 per person to kill the six witnesses who were going to testify against Mir. Gomez reported Mir’s offer to the jail guards. Eventually, the customs agent working on Mir’s case promised anonymity and protection to Gomez in return for his help in gathering evidence against Mir. Gomez then ...


Punishment In The State Of Nature: John Locke And Criminal Punishment In The United States Of America, Matthew K. Suess Jan 2015

Punishment In The State Of Nature: John Locke And Criminal Punishment In The United States Of America, Matthew K. Suess

Washington University Jurisprudence Review

No abstract provided.


Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack Nov 2014

Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack

Washington University Jurisprudence Review

No abstract provided.


Confined To A Narrative: Approaching Rape Shield Laws Through Legal Narratology, Kathryn C. Swiss Jan 2014

Confined To A Narrative: Approaching Rape Shield Laws Through Legal Narratology, Kathryn C. Swiss

Washington University Jurisprudence Review

No abstract provided.


Reconstructing Constitutional Punishment, Paulo Barrozo Jan 2014

Reconstructing Constitutional Punishment, Paulo Barrozo

Washington University Jurisprudence Review

Constitutional orders punish—and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political theories ...


Reasonable Rage: The Problem With Stereotypes In Provocation Cases, Nicole A.K. Matlock Jan 2014

Reasonable Rage: The Problem With Stereotypes In Provocation Cases, Nicole A.K. Matlock

Washington University Jurisprudence Review

No abstract provided.


Media Influence In The Ghailani Trial: Have We Seen This Before? The Ever-Growing Importance Of An Independent Judiciary, Michael Perich Jan 2012

Media Influence In The Ghailani Trial: Have We Seen This Before? The Ever-Growing Importance Of An Independent Judiciary, Michael Perich

Washington University Jurisprudence Review

This Note will demonstrate that the extensive media coverage in the Ghailaini trial affected the final decision reached in the case. Using the attitudinal model of judicial decision making as a lens, I will demonstrate that the judge‘s decision was ultimately influenced by a variety of external factors. Specifically, this is because the media, rather than the courts, seemed to decide the ultimate outcome. The possibility that outside factors swayed the decisions of Judge Kaplan calls into question the independence of the judiciary, which ultimately affects the sense of justice created by Ghailani‘s prosecution. To look at the ...