A Moral Predicament in the Criminal Law

Abstract

This essay is about the difficulties of doing criminal justice in the context of severe social injustice. Having been marginalized as citizens of the larger community, those who are victims of severe social injustice are understandably alienated from the dominant political institutions, and, not unreasonably, disrespect their authority, including that of the criminal law. The failure of equal treatment and protection and the absence of anything like fair and decent life prospects for the members of the marginalized populations erode the basis for its allegiance to demands of the political community. The criminal law thus occupies a problematic normative position with respect to lawbreakers in this population; in many cases, it finds itself in the position of convicting them for crimes for which the political community itself bears some significant responsibility. The attempt to administer criminal justice therefore faces a serious moral predicament; on the one hand, criminal law has a right and an obligation to protect citizens against serious crimes; on the other hand, because of its responsibility for the plight of many defendants, the dominant society is itself implicated in the wrongdoing in question. This paper tries to characterize the predicament in a perspicuous way and to suggest ways of proceeding in its face.     

Less guilty by reason of adolescence: developmental immaturity, diminished responsibility, and the juvenile death penalty

The authors use a developmental perspective to examine questions about the criminal culpability of juveniles and the juvenile death penalty. Under principles of criminal law, culpability is mitigated when the actor's decision-making capacity is diminished, when the criminal act was coerced, or when the act was out of character. The authors argue that juveniles should not be held to the same standards of criminal responsibility as adults, because adolescents' decision-making capacity is diminished, they are less able to resist coercive influence, and their character is still undergoing change. The uniqueness of immaturity as a mitigating condition argues for a commitment to a legal environment under which most youths are dealt with in a separate justice system and none are eligible for capital punishment.     

Drogenkonsum und Strafrecht

Drug consumption is a criminogenic factor. Almost all unauthorized contacts with narcotic drugs are punishable by German law. Users and dealers tie up significant resources within the judiciary, which in turn often requires help from psycho-scientific experts. Aiming at those experts, this article imparts basic knowledge of the criminal law on narcotics. Furthermore, it is meant to outline the impact of drug consumption on the assessment of offenders’ criminal responsibility as well as on ordering measures for the prevention of crime and the reformation of offenders from the jurisdictional point of view. Moreover, the article discusses the legal consequences of driving under the influence of drugs. Additionally, requirements for expert opinions on the criminal responsibility of drug addicts are summarised.     

Bad or Mad? Personality disorders and legal responsibility-the German situation

Criminal offenders have a high rate of personality disorders (PDS), especially Antisocial Personality Disorders and psychopathy, but criminal acts are not necessarily the result of PD. Findings from psychiatric research suggest that the development of PD is influenced by genetic factors, that can result in deviant traits in temper, emotionality and cognitive style. There is general agreement that those peculiarities and vulnerabilities find their expression and structure only under a complex interplay of stimulating or impairing environmental influences. Do these genetic factors-or other factors-diminish a person's criminal responsibility? There is no difficulty in diagnosing PDs, but the challenging questions arise in forensic assessments of defendants for criminal responsibility who have a PD. This article discusses the German legal situation and special problems created by the term of "diminished" criminal responsibility. In contrast to the Anglo-American legal situation, the German criminal law obliges the court to order an indeterminate forensic - psychiatric confinement, in addition to punishment, if the offender had acted under diminished criminal responsibility and is now still considered to be dangerous. The convicted offender remains under the control of the criminal court during psychiatric hospitalization. The change from handling the personality disordered offender as a criminal to handling him as someone with a mental disorder creates a social option for extended state interventions, including indeterminate hospitalization.     

Drug-associated psychoses and criminal responsibility

At present, the law draws a distinction when assigning criminal responsibility to those who commit offences while experiencing psychotic symptoms: if the symptoms are believed to arise because of ingesting drugs (an external cause), the offender is generally convicted of the offence; if the symptoms arise from a mental illness (an internal cause), the offender may be afforded a defence of insanity. In practice, drawing such a distinction can be problematic. There are difficulties for example in determining criminal responsibility when the use of drugs is followed by the emergence of a psychotic illness process that then continues to have an independent existence even in the absence of the ongoing substance use. This article analyses legal, policy, and expert witness perspectives relating to liberal, conservative, and intermediate approaches to this problematic area of jurisprudence.     

Outcome Severity and Judgments of “Responsibility”: A Meta‐Analytic Review1

Research has provided mixed support for the hypothesis that when an incident results in a more severe outcome, more responsibility will be attributed to a potentially responsible actor. This paper uses the techniques of meta‐analysis to examine this literature. The results support the contention that people attribute greater responsibility for the outcome of a negative incident when that outcome is more severe than when the outcome is minor. The direction of this relationship is consistent across methodologies. However, the strength of the correlation varies depending on which type of judgment participants are asked to make. Because many of these variables are tied to legal concepts, the results are discussed in the context of the expectations of the legal system regarding the impact of outcome severity on each variable.     

Responsibilities of Criminal Justice Officials

In recent years, political philosophers have hotly debated whether ordinary citizens have a general pro tanto moral obligation to follow the law. Contemporary philosophers have had less to say about the same question when applied to public officials. In this paper, I consider the latter question in the morally complex context of criminal justice. I argue that criminal justice officials have no general pro tanto moral obligation to adhere to the legal dictates and lawful rules of their offices. My claim diverges not only from the commonsense view about such officials, but also from the positions standardly taken in legal theory and political science debates, which presume there is some general obligation that must arise from legal norms and be reconciled with political realities. I defend my claim by highlighting the conceptual gap between the rigid, generalised, codified rules that define a criminal justice office and the special moral responsibilities of the various moral roles that may underpin that office (such as guard, guardian, healer, educator, mediator, counsellor, advocate, and carer). After addressing four objections to my view, I consider specific contexts in which criminal justice officials are obligated not to adhere to the demands of their offices. Amongst other things, the arguments advanced in this paper raise questions about both the distribution of formal discretion in the criminal justice system and the normative validity of some of the offices that presently exist in criminal justice systems.     

The insanity defense: Historical development and present status

This article provides an overview of the historical development of the insanity defense, including a discussion of the standards which have been used to excuse someone from criminal responsibility. The legal issues raised pre-trial and at trial are presented, along with a discussion of current proposals to modify or abolish the insanity defense. The article also focuses on the disposition of insanity acquittees, including both the case and statutory law in this area. Constitutional bases for challenges to differential procedures for insanity acquittees, along with proposals to change the law relating to them are included.     

跨文化的实证法学研究：文化心理学的挑战与贡献

跨文化的实证法学研究把文化心理学的理论突破和心理学的实证方法引入到对法学基本原理的研究之中。文化心理学研究中发现的东西方文化在价值定向、道德判断和思维方式等方面的差异能够给跨文化实证法学研究带来重要的启示。在对一些重要法律问题的认识上, 例如法律中的因果关系和责任的判定、合同形成以及纠纷调解等方面, 跨文化心理学研究已经发现了显著的跨文化差异, 这些差异可能会影响到不同文化背景的人对法的认识、法的建设以及法律的应用。我们认为跨文化的实证法学研究不仅可以为法学研究提供一条新的研究路径, 更主要的是还可以为中国法学研究的国际化和国际法律纠纷提供理论指导。     

信念与结果对道德、法律责任判断的影响

在"执行者"和"旁观者"两个情境中,通过操纵当事人的信念和事件结果,考察了被试的道德与法律责任判断。结果显示:进行道德责任判断时,被试对当事人的信念信息更敏感;进行法律责任判断时,则对事件结果的信息更敏感。"执行者"情境中的道德和法律责任评分均高于"旁观者"情境中的责任评分。这说明道德、法律责任判断的内部机制有所不同,并且当事人的不同角色导致第三方对其的责任判断出现差异。     

青少年脑发育的神经法学研究与应用

神经科学研究的发展推动并孕育了新兴交叉学科--神经法学, 青少年脑发育与其刑事责任能力的关系是神经法学的重要关注内容。研究发现, 青少年中期冒险行为倾向加剧可能源于其社会情感和认知控制的脑发育轨迹不同, 由皮层下组织主导的社会情感系统呈倒U形发展趋势, 在青少年中期达到峰值, 而由额叶成熟主导的认知控制系统发展呈线性增长,到成人早期才完成, 即, 皮层下组织与前额皮层的功能成熟不平衡导致了青少年的高犯罪率。这些神经科学证据已经进入美国青少年刑事案件的审判并产生实质影响, 但也有人对神经科学证据应用于法庭持有异议。相对于法律系统的需求, 青少年脑发育的神经法学需要在研究和实践方面同时努力。     

Reforming England's Blasphemy Law to Protect the Individual

Using a framework of legal analysis proposed by Robert Post, this article examines the novel possibility of a reform in England's current criminal law of blasphemy. As previous attempts to include faiths other than Christianity faltered politically and theoretically, the article proposes a reform of the law to protect individual citizens and not religious groups. Different from incitement to racial or religious hatred legislation, this new offense would rest on what Joel Feinberg calls 'vicarious harm', the harm done directly to a person by deliberately wounding her sense of the sacred. The essay takes as given the propositions that equality before the law is desirable, a clear and ordered criminal offense is better than a vague criminal offense, and, as given specifically by the circumstances in England, a reverence for the transcendent sacred is privileged above other forms of reverence.     

Mental health criminal defenses in persons with neuropsychiatric disorders

Persons with neuropsychiatric disorders present specific and unique challenges for forensic experts and defense attorneys in the criminal justice system. This article reviews two potential criminal defenses: legal insanity and the various legal standards or tests of criminal responsibility that are used in jurisdictions throughout the United States (i.e., the M’Naghten standard and the American Law Institute's Model Penal Code), and the partial legal defense of diminished capacity (lacking the mental state necessary to be found guilty of a specific intent crime). The process of evaluating criminal responsibility or diminished capacity is also presented with a specific emphasis on common issues that arise in evaluating defendants with Intellectual Developmental Disorder (Intellectual Disability), Parasomnias, Seizure Disorders, and Neurocognitive Disorders.     

Apology in the criminal justice setting: evidence for including apology as an additional component in the legal system

The criminal justice system has reached unprecedented scope in the United States, with over 6.4 million people under some type of supervision. Remedies that have the potential to reduce this number are continually being sought. This article analyzes an innovative strategy currently being reconsidered in criminal justice: the apology. Despite a legal system that only sporadically acknowledges it, evidence for the use of apology is supported by social science research, current criminal justice theories, case law, and empirical studies. Social psychological, sociological and socio-legal studies pinpoint the elements and function of apology, what makes apologies effective, and concerns about apology if it were implemented in the criminal justice system. Theoretical evidence is examined (including restorative justice, therapeutic jurisprudence, crime, shame, and reintegration) to explore the process of apology in the criminal justice context. Attribution theory and social conduct theory are used to explain the apology process specifically for victims and offenders. A brief examination of case law reveals that though apology has no formal place in criminal law, it has surfaced recently under the federal sentencing guidelines. Finally, empirical evidence in criminal justice settings reveals that offenders want to apologize and victims desire an apology. Moreover, by directly addressing the harmful act, apology may be the link to reduced recidivism for offenders, as well as empowerment for victims. This evidence combined suggests that apology is worthy of further study as a potentially valuable addition to the criminal justice process.     

Voluntary intoxication and criminal responsibility.

This paper reviews the law related to voluntary intoxication and criminal responsibility in the 50 United States, the District of Columbia, the US Virgin islands, and Puerto Rico. Statutory and case law citations are provided which govern the use of intoxication evidence in each jurisdiction to negate mens rea (i.e., to establish diminished capacity), to support an insanity defense, and to mitigate criminal sentencing. Factors that courts typically focus on when deciding whether to admit this evidence in a particular case are discussed, and these factors are related to clinically relevant criteria.     

Law enforcement and criminal justice personnel interactions with transgender people in the United States: A literature review

This literature review examines research exploring the interactions between transgender people and law enforcement and criminal justice (LECJ) personnel in the U.S. to better understand the experiences of transgender people who come into contact with the criminal justice system. A search of existing academic literature, public health reports, and advocacy group publications revealed 33 studies that contained information about transgender people's interactions with LECJ personnel. Results highlight how large percentages of transgender people experience arrest and incarceration, unjustified stops and arrest, disrespect and poor case handling, and abuse and violence from LECJ personnel while in their communities. Large percentages of transgender people in institutional settings also reported abuse committed by criminal justice personnel, including harassment, assault, and a lack of protection from other inmates. This review also highlights evidence of discriminatory and abusive treatment when transgender victims seek assistance from the legal system. Taken together, this study suggests a need for further work to de-stigmatize the legal and criminal justice systems.     

Genetics and criminal responsibility

Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred. Advocates have tried to use genetic evidence to affect judgments of criminal responsibility. At present, however genetic research can provide little aid to assessments of criminal responsibility and it does not suggest a radical critique of responsibility.     

服刑人员重塑法治价值观过程的质性探索

采用扎根理论方法,通过深度访谈、查询检索,收集服刑人员谈话派生资料(n=13),通过三级编码分析、构建理论, 探索服刑人员从犯罪到守法的重塑法治价值观过程。结果显示,服刑人员心理变化分四阶段：1）接受期,认清身份,端正态度;2）积累期,学法习德,修正扭曲;3）转变期,反思总结,守法自新;4）拓展期,延伸法治,规划未来。通过管教民警引导,服刑人员联系亲情逐渐修正扭曲价值观,实现守法自新的转变。     

Responsabilité médicale et expertise : de la loi du Talion à la loi Kouchner

Despite the appearance from the Mesopotamian era of medical responsibility, an apparent impunity of the doctor will be in place until the 19th century. In France, it will be necessary to wait for the Napoleonic codes of 1804 and 1810 in order to clearly dissociate the civil and criminal responsibilities of the doctor. If liability for fault remains the rule in medical matters today, the concept of liability without fault introduced by the industrial revolution and the legislation on industrial accidents was taken up by the Kouchner law of 2002. It definitively opens the way to a statutory and legal compensation for non-faulty medical accidents under national solidarity via the National Office for Compensation for Medical Accidents (ONIAM) and the Conciliation and Compensation Commissions (CCI). Expertise in medical liability is now the backbone of the victim compensation process. It guides the magistrate in the recognition of faulty or non-faulty medical liability and helps him to set the amount of compensation allocated with regard to bodily injury.     

Legal Punishment and the Public Identification of Offenders

In the United States, the identities of criminal offenders are matters of public record, accessible to prospective employers, the press, and ordinary citizens. In European countries, the identities of offenders are routinely kept hidden, with some exceptions. The question addressed in this discussion concerns whether the public disclosure of the identities of offenders is part and parcel of their legal punishment. My contentions are that public disclosure is not conceptually part of legal punishment, necessary to serve substantive penal aims, or likely to enhance penal aims. At times, it will conflict with defensible aims of legal punishment. Other values might support or require the public identification of criminal offenders, but the aims of legal punishment do not appear to do so.