Criminology Commons^™

Internal And External Challenges To Culpability, Stephen J. Morse

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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 …

Skinning The Cat: How Mandatory Psychiatric Evaluations For Animal Cruelty Offenders Can Prevent Future Violence, Ashley Kunz

The Scholar: St. Mary's Law Review on Race and Social Justice

In 2017, the Texas legislature amended Texas Penal Code § 42.092, which governs acts of cruelty against non-livestock animals. The statute in its current form makes torturing, killing, or seriously injuring a non-livestock animal a third degree felony, while less serious offenses carry either a state jail felony or a Class A misdemeanor charge.

While a step in the right direction, Texas law is not comprehensive in that it fails to address a significant aspect of animal cruelty offenses: mental illness. For over fifteen years, Texas Family Code § 54.0407 has required psychiatric counseling for juveniles convicted of cruelty to …

Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick

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There is a 250 year old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision making models suggest that criminals must be risk-seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different than law abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill-informed, and …

Murder Mitigation In The Fifty-Two American Jurisdictions: A Case Study In Doctrinal Interrelation Analysis, Paul H. Robinson

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The essay surveys the law in the fifty-two American jurisdictions with regard to the three doctrines that commonly provide a mitigation or defense to murder liability: common law provocation and its modern counterpart, extreme mental or emotional disturbance; the so-called diminished capacity defense and its modern counterpart, mental illness negating an offense element; and the insanity defense. The essay then examines the patterns among the jurisdictions in the particular formulation they adopt for the three doctrines, and the combinations in which those formulations commonly appear in different jurisdictions. After this review, the essay steps back to see what kinds of …

Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister

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A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral …

Commentary: Reflections On Remorse, Stephen J. Morse

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This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

Protecting Liberty And Autonomy: Desert/Disease Jurisprudence, Stephen J. Morse

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This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the use …

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

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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 …