Law Commons^™

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Actmissions, Luis E. Chiesa

Journal Articles

Most observers agree that it is morally worse to cause harm by engaging in an act than to contribute to producing the same harm by an omission. As a result, American criminal law punishes harmful omissions less than similarly harmful acts, unless there are exceptional circumstances that warrant punishing them equally. Yet there are many cases in which actors cause harm by engaging in conduct that can be reasonably described as either an act or an omission. Think of a doctor who flips a switch that discontinues life support to a patient. If the patient dies as a result, did …

Authority To Proscribe And Punish International Crimes, Guyora Binder

Journal Articles

Although criminal jurisdiction is usually exercised by governments, offenses can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow …

Making The Best Of Felony Murder, Guyora Binder

Journal Articles

Although scorned as irrational by academics, the felony murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the felony murder doctrine can be best justified, and confined within its justifying principles. To that end, this Article seeks to make the best of American felony murder laws by identifying a principle of justice that explains as much existing law as possible, and provides a criterion for reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor’s aims as well as the actor’s expectations, this …

Punishing Without Free Will, Luis E. Chiesa

Journal Articles

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal …

Consent Is Not A Defense To Battery: A Reply To Professor Bergelson, Luis E. Chiesa

Journal Articles

In this essay I argue that, contrary to what most criminal law scholars believe, consent does not operate as a justification that relieves the actor of liability for conduct that admittedly satisfies the offense elements of battery. Rather, I contend that consent is only relevant to battery liability when, in conjunction with other factors, it modifies the definition of the crime in a way that reveals that the defendant’s act does not actually fall within the range of conduct prohibited by the offense. The argument proceeds in three parts.

In Part I, I argue that there are three ways of …

The Culpability Of Felony Murder, Guyora Binder

Journal Articles

Legal scholars are almost unanimous in condemning felony murder as a morally indefensible form of strict liability. This Article provides the long-missing principled defense of the felony murder doctrine. It argues that felony murder liability is deserved for killing negligently by means of a violent or apparently dangerous felony involving an additional malign purpose independent of physical injury to the victim killed. This claim follows from the simple idea that the guilt incurred in attacking or endangering others depends on one’s reasons for doing so. The article develops this idea into an expressive theory of culpability that assesses blame for …

Victims And The Significance Of Causing Harm, Guyora Binder

Journal Articles

Many criminal law theorists find the punishment of harm puzzling. They argue that acts should be evaluated only on the basis of the risks they create and the actors' awareness of those risks; that punishing results violates both desert and utility. This article explains punishment of harm on the basis of political theory rather than moral philosophy. Punishing harm helps legitimize the rule of law by vindicating victims. A rule of law state precludes cycles of organized retaliatory violence by asserting a monopoly on retaliatory force, thereby depriving individuals and groups of the option of securing their own dignity. We …

Of Persons And The Criminal Law: (Second Tier) Personhood As A Prerequisite For Victimhood, Luis E. Chiesa

Journal Articles

This article examines the implications of the Michael Vick case for the criminal law in general and for the law of victimhood in particular. It takes as its point of departure the NFL star's agreement to pay close to one million dollars to the various entities that assumed custody of the pit bulls in order to "make restitution for the full amount of the costs associated with the disposition of all dogs" that were involved in his illegal operation. According to the agreement, the authority to order such payments stems from 18 U.S.C. ý 3663, which allows for the issuance …

The Origins Of American Felony Murder Rules, Guyora Binder

Journal Articles

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews …

The Rhetoric Of Motive And Intent, Guyora Binder

Journal Articles

This article offers a critical analysis of the traditional maxim that motive is irrelevant to criminal liability. It retraces the history of this principle to show how its meaning has changed and its validity has declined over time. Originally promoted by reformers, the irrelevance of motive maxim derived meaning from their efforts to codify criminal law. In this context, the irrelevance of motive stood for two related reforms: (1) legislators should condition criminal liability on expectations of harm rather than desires, and (2) courts should require proof of statutory mental elements. With the success of codification, however, the irrelevance of …

Punishment Theory: Moral Or Political?, Guyora Binder

Journal Articles

This article argues that the justification of punishment is best conceived as a problem of political theory rather than moral philosophy. Noting the familiar charge that utilitarianism permits framing the innocent, it argues that retributivism is equally vulnerable to the charge that it permits lynching the guilty. It argues that both critiques unfairly attribute lawlessness and dishonesty to the respective punishment theories. As a result, they mischaracterize both as theories about what individuals should do, rather than what acts legitimate government should authorize. In so doing, they disregard how committed the founders of the respective theories were to the rule …

Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder

Journal Articles

The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the …

Meaning And Motive In The Law Of Homicide (Reviewing Samuel H. Pillsbury, Judging Evil: Rethinking The Law Of Murder And Manslaughter), Guyora Binder

Book Reviews

Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications …

Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith

Journal Articles

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …