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Full-Text Articles in Law
Criminal Acts And Basic Moral Equality, John A. Humbach
Criminal Acts And Basic Moral Equality, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …
Objective Punishment, Anthony M. Dillof
Objective Punishment, Anthony M. Dillof
Law Faculty Research Publications
Should the punishment fit the criminal as well as the crime? The article argues that idiosyncratic features of the criminal that might affect subjective punishment experience should not be considered when assessing the severity of the punishment for proportionality purposes.
Entitlement To Punishment, Kyron J. Huigens
Entitlement To Punishment, Kyron J. Huigens
Faculty Articles
This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.
An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …
The Just Response To Crime: To Harm Or To Heal?, Matthew M. Silberstein
The Just Response To Crime: To Harm Or To Heal?, Matthew M. Silberstein
Philosophy Department Student Scholarship
In the realm of criminal justice, Western society has primarily relied on retributive justice system. A retributive system uses punishment as the standard response to crime. In recent years, some have formulated a different criminal justice system, that of restorative justice. Rather than punishment, restorative justice proponents argue that justice is achieved in the aftermath of crime by healing the trauma incurred by crime. The aim of this project is to articulate the value of restorative justice and evaluate its prospects.
The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger
The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger
Articles
On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in imprisonment), nearly four times the rate in England, …
Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert
Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert
Faculty Articles
The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.
In particular, I …
Dividing Crime, Multiplying Punishments, John F. Stinneford
Dividing Crime, Multiplying Punishments, John F. Stinneford
UF Law Faculty Publications
When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will.
This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a …
Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie
Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie
All Faculty Scholarship
This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section …
Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit
Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit
Articles
This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment. The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution. It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more …
Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami
Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami
Faculty Publications
This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …
Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray
Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray
Faculty Scholarship
How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …
Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber
Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber
Faculty Scholarship
In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …
Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Faculty Scholarship
No abstract provided.
Rethinking The Constitutional Criminal Procedure Of Juvenile Transfer Hearings: Apprendi, Adult Punishment And Adult Process, Jenny E. Carroll
Rethinking The Constitutional Criminal Procedure Of Juvenile Transfer Hearings: Apprendi, Adult Punishment And Adult Process, Jenny E. Carroll
Faculty Scholarship
This article makes valuable new contributions to the burgeoning scholarly discourse on Apprendi v. New Jersey-a landmark decision that celebrates its tenth anniversary this year. It builds on the author's experience as a public defender, during which she pioneered the surprising but straightforward argument that under Apprendi, findings that justify transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt. Apprendi requires that any fact authorizing a sentence higher than the otherwise applicable statutory maximum must be found by a jury using a beyond a reasonable doubt standard. This tenet applies directly to juvenile …
Cruel And Unequal Punishment, Nita A. Farahany
Cruel And Unequal Punishment, Nita A. Farahany
Faculty Scholarship
This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in …
Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson
Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson
All Faculty Scholarship
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, …
Inter-American System, Claudia Martin
Inter-American System, Claudia Martin
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Utility Of Desert, Paul H. Robinson, John M. Darley
The Utility Of Desert, Paul H. Robinson, John M. Darley
All Faculty Scholarship
The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real …
An Epilogue To The Age Of Pound, Thomas A. Green
An Epilogue To The Age Of Pound, Thomas A. Green
Articles
Doubts about the reality of criminal offenders' autonomy have sometimes played a role in the movement to abolish, or greatly reduce the reach of, the sanction of capital punishment.
Freedom And Criminal Responsibility In The Age Of Pound: An Essay On Criminal Justice, Thomas A. Green
Freedom And Criminal Responsibility In The Age Of Pound: An Essay On Criminal Justice, Thomas A. Green
Articles
The concept of freedom has two main aspects: political liberty and freedom of the will. I am concerned here with the latter, although - as these two aspects of freedom are not entirely unrelated to each other - I shall touch also on the former. Enough has been written from a philosophical perspective on the relationship between free will and the law that it is not easy to justify yet another such undertaking. But there may still be room for some informal observations on the manner in which doubts about the concept of freedom of the will affected discussion of …
The Role Of Harm And Evil In Criminal Law: A Study In Legislative Deception?, Paul H. Robinson
The Role Of Harm And Evil In Criminal Law: A Study In Legislative Deception?, Paul H. Robinson
All Faculty Scholarship
What is the role of the occurrence of harm or evil in criminal law? What should it be? Answers to these questions commonly use the distinction between what is called an objective and a subjective view of criminality. To oversimplify, the objective view maintains that the occurrence of the harm or evil defined by the offense is highly relevant. The subjectivist view maintains that such harm or evil is irrelevant; only the actor's culpable state of mind regarding the occurrence of the harm or evil is important. The labels tend to overstate a rather subtle distinction. The objectivist or harmful …