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Full-Text Articles in Law

On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held Jan 2009

On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held

Reid G. Fontaine

A “cultural defense” to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values—the purported aim of the cultural defense—because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms—after all, justice systems are themselves cultural institutions. Furthermore, a defendant’s background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt without damaging the culpability …


Restoration But Also More Justice, Stephanos Bibas Jan 2009

Restoration But Also More Justice, Stephanos Bibas

All Faculty Scholarship

This short essay replies to Erik Luna's endorsement of restorative justice. He is right that the goal of healing victims, defendants, and their families is important but all too often neglected by substantive criminal law and procedure, which is far too state-centered and impersonal. The problem with restorative justice is that too often it seeks to sweep away punishment as barbaric and downplays the need for deterrence and incapacitation as well. In short, restorative justice deserves more of a role in American criminal justice. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach …


Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt Jan 2009

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.