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Articles 1 - 18 of 18
Full-Text Articles in Law
Judicial Fact-Finding At Sentencing, Stephanos Bibas
Judicial Fact-Finding At Sentencing, Stephanos Bibas
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This encyclopedia entry summarizes the pendulum-swings that led the Supreme Court in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker to limit judges' ability to find facts at sentencing. Paradoxically, the much-criticized Federal Sentencing Guidelines have survived; a line of cases that began as an effort to restore juries' role has turned into a guarantor of judicial discretion; and the doctrine has quickly moved far from its Sixth Amendment roots to a policy balancing test. The Court could instead have pursued a different, more fruitful path. The Court did not have to force sentencing factors into …
Exacerbating Injustice, Stephanos Bibas
Exacerbating Injustice, Stephanos Bibas
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This brief essay responds to Josh Bowers' argument that criminal procedure should openly allow innocent defendants to plead guilty as a legal fiction. Though most scholars emphasize the few but salient serious felony cases, Bowers is right to refocus attention on misdemeanors and violations, which are far more numerous. And though the phrase wrongful convictions conjures up images of punishing upstanding citizens, Bowers is also right to emphasize that recidivists are far more likely to suffer wrongful suspicion and conviction. Bowers' mistake is to treat the criminal justice system as simply a means of satisfying defendants' preferences and choices. This …
Doctors, Discipline, And The Death Penalty: Professional Implications Of Safe Harbor Statutes, Nadia N. Sawicki
Doctors, Discipline, And The Death Penalty: Professional Implications Of Safe Harbor Statutes, Nadia N. Sawicki
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State capital punishment statutes generally contemplate the involvement of medical providers, and courts have acknowledged that the qualifications of lethal injection personnel have a constitutionally relevant dimension. However, the American Medical Association has consistently voiced its opposition to any medical involvement in executions. In recent years, some states have responded to this conflict by adopting statutory mechanisms to encourage medical participation in lethal injections. Foremost among these are safe harbor policies, which prohibit state medical boards from taking disciplinary action against licensed medical personnel who participate in executions. This Article posits that safe harbor policies, as limitations on medical board …
Political Versus Administrative Justice, Stephanos Bibas
Political Versus Administrative Justice, Stephanos Bibas
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This comment responds to an essay by Rachel Barkow, which insightfully links the decline of mercy in American criminal justice to the rise of a rule-of-law ideal inspired by administrative law. This comment notes the dangers of the administrative, rule-focused, judiciocentric approach to criminal justice. Instead, it suggests a more political approach, with more judicial deference to political actors and less judicial policing of equal treatment. The essay by Rachel Barkow to which this comment responds, as well as other authors' comments on this essay and the author's reply to those comments, can be found at http://www.law.upenn.edu/phr/conversations/status/
Invasions Of Conscience And Faked Apologies, Stephanos Bibas
Invasions Of Conscience And Faked Apologies, Stephanos Bibas
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This comment responds to an essay by Jeffrie Murphy, which powerfully notes the limitations and dangers of using remorse and apology as metrics for punishment. But the state is more justified in teaching lessons than Murphy suggests, and retributivism ought to make more room for victim vindication and satisfaction. Gauging sincerity, while difficult, is not impossible. In the end, Murphy offers strong reasons to be cautious. But a humane society ought to be more willing to take chances and, having punished, to forgive. The essay by Jeffrie Murphy to which this comment responds, as well as other authors' comments on …
Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson
Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson
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The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment -- referred to variously as desert, just punishment, retributive punishment, or simply doing justice -- may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, …
Self-Defense And The State, Kimberly Kessler Ferzan
Self-Defense And The State, Kimberly Kessler Ferzan
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This article is a contribution to a symposium honoring Sandy Kadish. This article seeks to explore whether and to what extent our understanding of self-defense depends upon a citizen's relationship with the state. Part II begins by setting forth Professor Kadish's claim that self-defense is "a right to resist aggression" that is held by a citizen against the state. After contending that such an account is insufficient to justify self-defense, the remainder of the article seeks to explore the relationship between the state and self-defense. Part III argues that self-defense is a pre-political moral right, as opposed to a political …
Culpable Acts Of Risk Creation, Larry Alexander, Kimberly Kessler Ferzan
Culpable Acts Of Risk Creation, Larry Alexander, Kimberly Kessler Ferzan
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In our view, an actor deserves punishment when he demonstrates insufficient concern for others, that is, when he engages in a culpable act of risk creation. In this essay, we address how we would rethink the actus reus so as to track the actor's culpability and blameworthiness. Part I sets forth our view that defendants deserve to be punished for culpable acts. Briefly put, an actor is culpable when he risks others' legally protected interests for insufficient reasons. In Part II, we turn to the question of how we would formulate a unit of culpable action. We argue that with …
Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse
Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse
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No abstract provided.
Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz
Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz
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What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …
Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas
Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas
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The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child …
Constructing A Criminal Justice System Free Of Racial Bias: An Abolitionist Framework, Dorothy E. Roberts
Constructing A Criminal Justice System Free Of Racial Bias: An Abolitionist Framework, Dorothy E. Roberts
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No abstract provided.
Beyond Intention, Kimberly Kessler Ferzan
Beyond Intention, Kimberly Kessler Ferzan
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The conventional view is that a result is intended if it is motivationally significant - i.e., if it is why the person acted. However, inseparable effects cases place pressure on this conventional view for we intuitively reject the claim that, for instance, one can intend to decapitate without intending to kill. These cases therefore threaten an important border in both law and morality - the distinction between what we intend and what we foresee. In resolving the problem of inseparable effects, this article challenges the conventional view that intentions are co-extensive with motivational significance. Drawing on philosophy of mind literature, …
The Domestic Influence Of International Criminal Tribunals: The International Criminal Tribunal For The Former Yugoslavia And The Creation Of The State Court Of Bosnia & Herzegovina, William W. Burke-White
The Domestic Influence Of International Criminal Tribunals: The International Criminal Tribunal For The Former Yugoslavia And The Creation Of The State Court Of Bosnia & Herzegovina, William W. Burke-White
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International criminal tribunals are often criticized for having minimal influence on the states over which they exercise jurisdiction. This article argues that the International Criminal Tribunal for the Former Yugoslavia has had a far more positive impact on domestic governance in Bosnia & Herzegovina than previously assumed by both the academic and policy communities. The article develops a theoretical model to explain the impact of international criminal tribunals on domestic governance and tests that model against the ICTY¹s influence in Bosnia. More specifically, the article advances the claim that the nature of the tribunal¹s jurisdictional relationship with domestic judicial institutions …
Determinism And The Death Of Folk Psychology: Two Challenges To Responsibility From Neuroscience, Stephen J. Morse
Determinism And The Death Of Folk Psychology: Two Challenges To Responsibility From Neuroscience, Stephen J. Morse
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No abstract provided.
Punishment And Justification, Mitchell N. Berman
Punishment And Justification, Mitchell N. Berman
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Retributivist and consequentialist justifications for criminal punishment have contended for generations without either emerging the obvious victor. Indeed, although many commentators have recently announced a retributivist renaissance, it is perhaps more accurate to observe a growing scholarly attraction to "mixed" or "hybrid" theories. And yet most extant mixed theories strike many as unsatisfactory for either of two reasons. The best known mixed theories assign retributivist arguments a too-marginalized role relative to their consequentialist competitors. Others, that avoid this perceived failing, lack hard edges: They assert that desert and good consequences are jointly necessary to the justification of punishment but offer …
Living On The Edge: The Margins Of Legal Personhood, Symposium Foreword, Kimberly Kessler Ferzan
Living On The Edge: The Margins Of Legal Personhood, Symposium Foreword, Kimberly Kessler Ferzan
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In January 2008, at the Association of American Law Schools' annual meeting, the Jurisprudence Section conducted a panel on "The Margins of Legal Personhood." The goal of this panel was to draw (or sever) connections between and among different "marginal" entities: the psychopath, the animal, and the embryo or fetus. As is perhaps immediately apparent, these entities are not marginalized in a political sense, but rather lie at the margins of our moral and legal communities. Prima facie, they may have some, but lack all, of the capacities necessary for full membership. Because they live on the edge, we must …
The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein
The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein
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This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.