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Ignorance And Mistake Of Criminal Law, Noncriminal Law, And Fact, Kenneth Simons
Ignorance And Mistake Of Criminal Law, Noncriminal Law, And Fact, Kenneth Simons
Faculty Scholarship
After clarifying the distinction between mistakes of fact and mistakes of law, this article explores in detail an important distinction within the category of mistake of law, between mistake about the criminal law itself and mistake about noncriminal law norms that the criminal law makes relevant - for example, about the civil law of property (in a theft prosecution) or of divorce (in a bigamy prosecution). The Model Penal Code seems to endorse the view that mistakes about noncriminal law norms should presumptively be treated as exculpatory in the same way as analogous mistakes about facts. Case law on the …
Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons
Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons
Faculty Scholarship
Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer?
Risk And Inchoate Crimes: Retribution Or Prevention?, Larry Alexander, Kimberly Kessler Ferzan
Risk And Inchoate Crimes: Retribution Or Prevention?, Larry Alexander, Kimberly Kessler Ferzan
All Faculty Scholarship
In this book chapter we give a definition of inchoate crimes and argue that inchoate crimes, so defined, are not culpable and do not deserve punishment. Our argument against the culpability of inchoate crimes is based on several points: the ability of the actor who intends a future act that might be culpable if performed to change his mind prior to the act’s performance; the conditionality of all future-oriented intentions; uncertainty regarding the culpability-enhancing or culpability-mitigating circumstances that will exist at the future time of performance; and the roles of vacillation and duration in assessing culpability. We argue that punishment …
Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan
Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan
All Faculty Scholarship
The use of the term, "self-defense, " covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, "I am going to kill you," the aggressor's behavior forfeits the aggressor's right against the defender's infliction of harm that is intended to repel the aggressor's attack. Because the right is forfeited, numbers do not count (the …