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A Distributive Theory Of Criminal Law, Aya Gruber
A Distributive Theory Of Criminal Law, Aya Gruber
Publications
In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …
Restructuring The Debate Over Fetal Homicide Laws, Carolyn B. Ramsey
Restructuring The Debate Over Fetal Homicide Laws, Carolyn B. Ramsey
Publications
The worst problems with the fetal homicide laws that have proliferated around the nation are quite different than the existing scholarship suggests. Critics often argue that the statutes, which criminalize the killing of a fetus by a third party other than an abortion provider, undermine a woman's right to terminate her pregnancy. This concern is overstated. Although supported by anti-abortionists, many of the fetal homicide laws embody the perspective of the so-called "abortion grays," who eschew the absolutism of the doctrinaire pro-choice and anti-abortion camps. This Article explores how a contextual view of life-taking allows us to reconcile legal abortion …
A Theory Of Justification: Societal Harm As A Prerequisite For Criminal Liability, Paul H. Robinson
A Theory Of Justification: Societal Harm As A Prerequisite For Criminal Liability, Paul H. Robinson
All Faculty Scholarship
All would agree that the criminal law seeks to prevent harmful results rather than to punish evil intent that produces no harm. If one views deterrence as the proper function of the criminal law, a harm requirement is appropriate. To the extent that the criminal law punishes nonharmful conduct, it weakens the stigma and deterrent effect of criminal conviction for harmful conduct. If a defendant who has caused no harm feels that he is punished unjustifiably, rehabilitative efforts will be hampered. Indeed, one may ask: If no harm has been caused, what harm will be deterred by punishment, and what …