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Criminal Law

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Selected Works

2014

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Articles 1 - 7 of 7

Full-Text Articles in Law

Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin Dec 2014

Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin

Jens David Ohlin

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment …


Restorative Justice, Punishment, And Atonement, Stephen P. Garvey Dec 2014

Restorative Justice, Punishment, And Atonement, Stephen P. Garvey

Stephen P. Garvey

Restorative justice is a way of responding to crime, and according to its proponents, it's a much better way of responding than the way they believe we now respond: through punishment imposed in the name of retributive justice. According to its proponents, restorative justice is better than retributive justice because it restores, or at least tries to restore, the victim; retribution's only aim is to punish the offender. According to restorativists, retribution ignores the victim. I argue here for two claims. First, I argue in Part II that restorative justice cannot have it both ways: it cannot achieve the restoration …


Is It Wrong To Commute Death Row? Retribution, Atonement, And Mercy, Stephen P. Garvey Dec 2014

Is It Wrong To Commute Death Row? Retribution, Atonement, And Mercy, Stephen P. Garvey

Stephen P. Garvey

Is it a morally permissible exercise of mercy for a governor to commute the death sentences of everyone on a state's death row, as Governor Ryan recently did in Illinois? I distinguish three different theories of mercy. The first two theories locate mercy within a theory of punishment as retribution. The first theory treats mercy as a means by which to achieve equity. As such, this theory is not really a theory of mercy; it is instead a theory of justice. The second theory treats mercy as a genuine virtue independent of justice. In particular, mercy is understood as an …


Lifting The Veil On Punishment, Stephen P. Garvey Dec 2014

Lifting The Veil On Punishment, Stephen P. Garvey

Stephen P. Garvey

When the state punishes a person, it treats him as it ordinarily should not. It takes away his property, throws him in prison, or otherwise interferes with his liberty. Theories of punishment try to explain why such harsh treatment is nonetheless morally permissible, if not morally obligatory. Such theories often seem to take for granted that the state in question is an upright one. Among other things, the states in which we live fail, one might reasonably believe, to distribute wealth and power fairly among their citizens. Nor are the criminal justice systems they superintend flawless, not least of which …


Oil And Water: Why Retribution And Repentance Do Not Mix, Sherry F. Colb Dec 2014

Oil And Water: Why Retribution And Repentance Do Not Mix, Sherry F. Colb

Sherry Colb

No abstract provided.


Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston Oct 2014

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

E. Lea Johnston

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm …


Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin Feb 2014

Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin

Bailey H. Kuklin

No abstract provided.