The wrongness of rape -- Rationality and the rule of law in offences against the person -- Complicity and causality -- In defence of defences -- Justifications and reasons -- The gist of excuses -- Fletcher on offences and defences -- Provocation and pluralism -- The mark of responsibility -- The functions and justifications of criminal law and punishment -- Crime : in proportion and in perspective -- Reply to critics.

In this long-awaited book, Antony Duff offers a new perspective on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the question of (...) criminalisation, which can now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account. (shrink)

This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in (...) the face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue (...) of criminalization—of how we should determine the proper scope of the criminal law. (shrink)

In Responsible Brains, Hirstein, Sifferd and Fagan apply the language of cognitive neuroscience to dominant understandings of criminal responsibility in criminal law theory. The Authors make a compelling case that, under such dominant understandings, criminal responsibility eventually ‘translates’ into a minimal working set of executive functions that are primarily mediated by the frontal lobes of the brain. In so arguing, the Authors seem to unquestioningly accept the law’s view of the “responsible person” as a mixture of cognitive (...) capacities and mechanisms—thereby leaving aside other fundamental aspects of individuals’ human agency. This commentary article offers a critique of the Authors’ rationalist and individualist approach. The critique can be summarized through the following claim: We humans, as responsible beings, are more than our executive functions. This claim articulates through four main points of discussion: role of emotions in moral judgments and behavior; executive functions and normative criteria for legal insanity; impact of adverse situational factors on executive functions; Authors’ account of punishment and, especially, rehabilitation. (shrink)

The present research applies Michel Foucault's perspectives on discipline and punishment to Steve Hamilton's novel The Lock Artist, exploring the criminal subjectivity of the protagonist beyond the binary of good and evil. Through textual analysis, the study examines the norms, upbringing, and circumstances that shape the protagonist's identity as a deviant and criminal. The research also investigates the role of confession as a tool of the modern state in altering the subjectivity of its subjects. The findings suggest that (...) deviance and illegality are social constructs, created and maintained by power structures. The study highlights how society defines deviance and the state defines illegality, leading individuals down a path of criminalization. This research provides insight into the ways power operates to shape an individual’s subjectivity, particularly in relation to criminality, and offers a critical analysis of the ways the modern state exercises control over its subjects. For useful explanation and analysis of criminal subjectivity, Michel Foucault’s book ‘discipline and punishment’ has been referred. This article discusses the norms, upbringing, and circumstances of the protagonist and tries to explore his subjectivity as a criminal beyond the paradigm of good and evil. It elaborates those factors which constitute his identity as a deviant and then as a criminal. Also, this research discusses the role of confession as a tool of the modern state to alter the subjectivity of its subject. (shrink)

It is often thought that traditional recidivism prediction tools used in criminal sentencing, though biased in many ways, can straightforwardly avoid one particularly pernicious type of bias: direct racial discrimination. They can avoid this by excluding race from the list of variables employed to predict recidivism. A similar approach could be taken to the design of newer, machine learning-based (ML) tools for predicting recidivism: information about race could be withheld from the ML tool during its training phase, ensuring that (...) the resulting predictive model does not use race as an explicit predictor. However, if race is correlated with measured recidivism in the training data, the ML tool may ‘learn’ a perfect proxy for race. If such a proxy is found, the exclusion of race would do nothing to weaken the correlation between risk (mis)classifications and race. Is this a problem? We argue that, on some explanations of the wrongness of discrimination, it is. On these explanations, the use of an ML tool that perfectly proxies race would (likely) be more wrong than the use of a traditional tool that imperfectly proxies race. Indeed, on some views, use of a perfect proxy for race is plausibly as wrong as explicit racial profiling. We end by drawing out four implications of our arguments. (shrink)

This paper presents a theory of reasoning with evidence in order to determine the facts in a criminal case. The focus is on the process of proof, in which the facts of the case are determined, rather than on related legal issues, such as the admissibility of evidence. In the literature, two approaches to reasoning with evidence can be distinguished, one argument-based and one story-based. In an argument-based approach to reasoning with evidence, the reasons for and against the occurrence (...) of an event, e.g., based on witness testimony, are central. In a story-based approach, evidence is evaluated and interpreted from the perspective of the factual stories as they may have occurred in a case, e.g., as they are defended by the prosecution. In this paper, we argue that both arguments and narratives are relevant and useful in the reasoning with and interpretation of evidence. Therefore, a hybrid approach is proposed and formally developed, doing justice to both the argument-based and the narrative-based perspective. By the formalization of the theory and the associated graphical representations, our proposal is the basis for the design of software developed as a tool to make sense of the evidence in complex cases. (shrink)

The current interest in Kant in the North American debate on criminal punishment arise from a deceptive hope: Kant seems as a sort of “antidote” useful to mitigate the results of correctional and merely intimidatory practice. Both the two current interpretations of his philosophy, for their typical post-modern statement, are yet improper and unproductive. Both Kant as a pioneer of so-called “limiting retributivism” and Kant theorist of “pure retributivism”, “purged” of the extreme application of the logic of jus talionis, (...) do offer us an “antidote” that is ineffective against the justified malaise which is rampant amongst the ranks of utilitarians on the other side of the Atlantic. Rather than a genuine medicine, it seems to be a sweetener, designed perhaps to make the unconscionable logic of power more acceptable, but certainly not to limit it. (shrink)

Mental health courts, premised on the notion of therapeutic justice, have become an increasingly appealing way of dealing with what is widely, although not uniformly, seen as the inappropriate incarceration of people who engage in criminal behavior caused by mental illness. Nevertheless, mental health courts are not without their critics and a number of objections have been raised against the implementation of these courts. Among these criticisms is that mental health courts may inappropriately privilege criminal behavior by the (...) provision of expedited comprehensive services to persons with mental illness who commit criminal of enses and, in doing so, reduce or delay the provision of services to persons with mental illness who do not engage in criminal behavior. This article explores the mechanisms that may result in “queue-jumping” and analyzes whether a priority to of enders, when it does occur, is justii able. (shrink)

The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law’s commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed. A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble (...) making good on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory’s defenders have not adequately explained what it is for an action to manifest insufficient regard. In this paper, I aim to provide the required account of manifestation, thereby rendering the insufficient regard theory more defensible. This, in turn, allows the view to explain the broad range of doctrines that treat unmanifested mental states as irrelevant. The resulting theory of criminal culpability is both descriptively plausible and normatively attractive. Moreover, it highlights the continuity between criminal culpability and moral blameworthiness by showing how the former functions as a stripped-down analogue of the latter. (shrink)

“Committing a crime might render one morally liable to certain forms of medical intervention”, claims Thomas Douglas, who stated in this context that “compulsory uses of medical correctives could in principle be justified.” This article engages critically with his and other arguments on the use of coercive neurocorrectives for criminal offenders. First, the rehabilitation assumption that includes—for coercive neurocorrectives to work as an alternative to incarceration—that rehabilitation is the “only goal” of criminal punishment is criticized. Additionally this article (...) engages with the theoretical difficulty of solely rehabilitative approaches, and discusses why it is unfortunate to design neurocorrectives so as to be particularly harmful in order to imagine administering them as being a punishment. Second, until we know more about specific neurocorrectives, we are well advised not to undermine the most important objection against coercive neurocorrectives, namely offenders’ human rights. This article argues that the use of coercive neurocorrectives would particularly violate Article 3 of the European Convention on Human Rights which guarantees as an absolute right that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”, and finally holds that a still weak human right to mental integrity and self-determination should fundamentally come first. (shrink)

The prevention of sexual violence is a major goal of sexual health. In cases of accused sexual offenders, the assessment of diminished criminal responsibility of the accused is one of the most important procedures undertaken by experts in the German legal system. This assessment follows a two-stage method assessing first the severity of a paraphilic disorder and then second criteria for or against diminished capacity. The present study examines the predictive validity of two different sets of criteria for the (...) assessment of criminal responsibility in the context of paraphilic disorders combined with sexual offending. Two exemplary case vignettes of two suspected sexual offenders were developed to assess the criteria. For each participant, one of the two exemplary case vignettes was randomly presented. The presentation of the two different sets of criteria was also randomized, so that each participant was assigned only one of the two criteria sets to rate one of the presented cases. N = 349 participants from different professional backgrounds completed their assessments and were included in the data analysis. The data were evaluated using logistic regression. Results show that the more recently published criteria set predicts both the severity of the disorder as well as the diminished capacity twice as good as the older criteria set of Boetticher et al. currently used regularly for forensic court reports. In preliminary conclusion, the new criteria of Briken and Müller form an empirically based assessment of criminal responsibility. However, the proposed criteria cannot replace an extensive exploration of the accused person and a careful file analysis. Validity and reliability of the results are also limited due to the methodical choice of a vignette study. (shrink)

Crimes against humanity are supposed to have a collective dimension with respect both to their victims and their perpetrators. According to the orthodox view, these crimes can be committed by individuals against individuals, but only in the context of a widespread or systematic attack against the group to which the victims belong. In this paper I offer a new conception of crimes against humanity and a new justification for their international prosecution. This conception has important implications as to which crimes (...) can be justifiably prosecuted and punished by the international community. I contend that the scope of the area of international criminal justice that deals with basic human rights violations should be wider than is currently acknowledged, in that it should include some individual violations of human rights, rather than only violations that have a collective dimension. (shrink)

The rapid implementation and continuing expansion of forensic DNA databases around the world has been supported by claims about their effectiveness in criminal investigations and challenged by assertions of the resulting intrusiveness into individual privacy. These two competing perspectives provide the basis for ongoing considerations about the categories of persons who should be subject to non-consensual DNA sampling and profile retention as well as the uses to which such profiles should be put. This paper uses the example of the (...) current arrangements for forensic DNA databasing in England and Wales to discuss the ways in which the legislative and operational basis for police DNA databasing is reliant upon continuous deliberations over these and other matters by a range of key stakeholders. We also assess the effects of the recent innovative use of DNA databasing for “familial searching” in this jurisdiction in order to show how agreed understandings about the appropriate uses of DNA can become unsettled and reformulated even where their investigative effectiveness is uncontested. We conclude by making some observations about the future of what is recognized to be the largest forensic DNA database in the world. (shrink)

While the low conviction rate for cases of sexual violence is often justified by the so-called ‘he-said-she-said’ nature of these cases, the increasing presence of digital evidence has begun to challenge this justification. This digital evidence can provide new opportunities for intervening in and prosecuting sexual violence. However, it may also be used against complainants or deemed still insufficient for proving guilt. Thus, while digital evidence may be challenging typical criminal justice responses to sexual violence, it may equally be (...) utilised to buttress entrenched stereotypes and criminal justice practices that lead to complainant dissatisfaction and serve to support low conviction rates. I draw on critical feminist legal theory, feminist engagements with digital technology and sexual violence, and visual criminology to theorise the burgeoning role of the digital witness in sexual violence cases. (shrink)

Punishment involves the intentional infliction of harm and suffering. Both of the most prominent families of justifications of punishment – retributivism and consequentialism – face several moral concerns that are hard to overcome. Moreover, the effectiveness of current criminal punishment methods in ensuring society’s safety is seriously undermined by empirical research. Thus, it appears to be a moral imperative for a modern and humane society to seek alternative means of administering justice. The special issue of Diametros “The Abolition of (...) Punishment: Is a Non-Punitive Criminal Justice System Ethically Justified?” was brought into life precisely to give the authors a platform for such progressive inquiries. And it is now safe to say that this platform has been put to excellent use, since Valerij Zisman, Alexander Stachurski, Giorgia Brucato, Perica Jovchevski, Sofia M. I. Jeppsson, Stephen G. Morris, Benjamin Vilhauer, John Lemos, Saul Smilansky, Elizabeth Shaw, Mirko Farina, Andrea Lavazza and Sergei Levin have presented such thought-provoking texts that they are bound to set the stage for debate in the years to come. This article is an introduction to this special issue and to the authors’ papers. (shrink)

The purpose of this article is to continue the discussion on Europe’s converging criminal justice systems. In particular, I test a hypothesis that has recently appeared in the literature, which sees the jurisprudence of the European Court of Human Rights as one of the most significant factors that encourage a harmonization process between the adversarial and inquisitorial criminal justice systems of Europe. This claim is supported by examining the Court’s jurisprudence to identify decisions that led to legislative and (...) policy amendments in the domestic legal orders of the 46 member states of the Council of Europe. This account shows how an interplay currently taking place between judicial, policy, and statutory powers is marking the end of the adversarial-inquisitorial era. Finally, the conclusion identifies the three most important impediments that are likely to hamper this harmonization process. (shrink)

With wit and intelligence, Leo Katz seeks to understand the basic rules and concepts underlying the moral, linguistic, and psychological puzzles that plague the criminal law. "_Bad Acts and Guilty Minds_... revives the mind, it challenges superficial analyses, it reminds us that underlying the vast body of statutory and case law, there is a rationale founded in basic notions of fairness and reason.... It will help lawyers to better serve their clients and the society that permits attorneys to hang (...) out their shingles."—Edward N. Costikyan, _New York Times Book Review_. (shrink)

With its express intention ‘to put an end to impunity’, the International Criminal Court (ICC) faces a substantial challenge in the shape of conditional amnesties granted in future national truth commissions (TCs)—a challenge that invokes fundamental considerations of criminal justice ethics. In this article, I give an account of the challenge, and I consider a possible solution to it presented by Declan Roche. According to this solution the ICC-prosecutor should respect national amnesties and prosecute and punish only those (...) perpetrators who have refused to cooperate with the TC. I argue, however, that this compromise is untenable. As a general rule, if we justify the ICC on grounds of deterrence we should not accept conditional amnesties granted in national TCs. (shrink)

In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: the psychological factors that motivate the individual’s behavior are environmentally determined and her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted. -/- To get to this conclusion, I will proceed in four (...) steps. In Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption ultimately because we sympathize with agents who lack responsibility for their actions. -/- Third, in Part IV, I aim to show that even if moral responsibility is not conceptually — only “emotionally” — necessary for just blame and punishment, the traditionally recognized criminal excuses are not at risk because, contrary to popular wisdom, they do not really rely on this assumption to begin with. Instead, they stand less for the metaphysical proposition that we should refrain from blaming and punishing the non-responsible and more for the normative/ethical proposition that we should refrain from blaming and punishing those whom we cannot reasonably expect to have acted better. I will further argue that the latter proposition does not necessarily reduce to the former. -/- Fourth, once I have defended my account of the excuses, I will question in Parts V and VI the increasingly popular notion that we should add certain conditions or circumstances to the list of recognized excuses. I will focus on one in particular — the psychological theory of “situationism” — and will argue that, despite its initial plausibility, it should be kept off the list. While situationism arguably does negate moral responsibility, it does not negate criminal responsibility. -/- Of course, this is a controversial point. Criminal responsibility is almost universally thought to require moral responsibility. But in a previous article, "Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention," 48 San Diego L. Rev. 1299, I used personality psychology to drive a wedge between the two. In this article, I will use the opposite end of the psychological spectrum — social psychology — to drive the same important wedge. (shrink)

This article aims at proposing the construct of living and working together in organizations as an interpretation and tool proposed in a Juvenile Criminal Mediation Service, in order to highlight how important it was as a turning point in activating the working group's reflexive function as far as their sense of belonging, otherness, culture of diversity, and work subject matter are concerned and start an important transformation process in the very service delivery. Our proposal finds its roots in a (...) follow-up experience regarding the aforementioned service, which has been taking place for almost three years. It was structured in three different phases: a research phase evaluating process and results of the activity that was carried out; a phase of monitoring the mediation practice; a research-action phase in a clinical perspective on the working group's operating mode. The leverage of living and working together in organizations is specifically proposed as far as this last working phase is concerned, las... (shrink)

(2006). Ethics in Policing: Performance and the Personalisation of Accountability in British Policing and Criminal Justice. Legal Ethics: Vol. 9, No. 1, pp. 16-34.

The present paper aims to investigate the causes of genocidal mobilization associated with the involvement of ordinary people. I discuss the “innocent causes” of criminal choices made by perpetrators who are not leaders, sadists or radicals. To this end, I compared three total genocides, of Armenians, Jews, Romani, Tutsi and Twa, and selected partial genocides. My analysis proves that entire nations or ethnic groups may be exterminated because many people make criminal choices which are motivated by values and (...) norms that in other circumstances would be considered acceptable or even commendable. These choices are made partly due to the structural pressure of circumstances and are partly derived from dispositions shaped in the course of primary and secondary socialization. Yet, they always require the reflexive mediation of “objective” social forces. (shrink)

La constatación de un proceso de transnacionalización del grupo criminal brasileño de base penitenciaria autodenominado Primer Comando de la Capital solo puede entenderse como un efecto de las formas de operación, prácticas, actividades y configuraciones asumidas por las redes criminales en medio de los cambios estructurales asociadas con la globalización, considerando, principalmente, las dinámicas de los mercados ilícitos de cocaína y marihuana. Entender el proceso de transnacionalización del PCC implica considerar especificidades que presenta un grupo que tiene su origen (...) en las cárceles y particularidades de la dinámica criminal brasileña en cuyo centro la prisión ocupa cada vez un lugar más importante. Aunque el PCC participe y amplíe su presencia internacional, y de hecho ingresó y opera en esas redes globales, lo hace de forma aún muy volcada para su actuación en Brasil. Hay, sin embargo, elementos indicativos de que el grupo evoluciona para nuevas conformaciones en ese mercado criminal global, especialmente aquél del tráfico de drogas. (shrink)

A criminal offense requires two elements. First, it requires proof of misconduct that is specifically prohibited by law. Second, it requires proof of sufficient intention or recklessness to warrant assignment of moral culpability for the act. For example, a person who kills another person intentionally is typically guilty of murder, while a person who kills recklessly or in the heat of passion in response to provocation may be guilty of manslaughter, and a person who kills accidentally is not guilty (...) of any crime. Even if the elements of the offense have been proven by the prosecution, the actor may not be punishable if the defense proves that his conduct was either justified or excused. (shrink)

This article clarifies what a neuroscience challenge to criminal justice must look like by sketching the basic structure of the argument, gradually filling out the details and illustrating the conditions that must be met for the challenge to work. In the process of doing so it explores influential work by Joshua Greene and Jonathan Cohen, and Stephen Morse respectively, arguing that the former should not be understood to present a version of the challenge, and that the latter's argument against (...) the challenge is unpersuasive. This analysis allows the article to flesh out the challenge, and demonstrate why it is currently non-completeable. However, the paper argues that contrary to what is often assumed the burden of proof falls on the defenders of criminal justice, and that they will find meeting it a monumental task. (shrink)

In 2022, the Camden Coalition Medical-Legal Partnership began providing civil and criminal legal services to substance use disorder patients at Cooper University Health Care’s Center for Healing. This paper discusses early findings from the program’s first year on the efficacy of the provision of criminal-legal representation, which is uncommon among MLPs and critical for this patient population. The paper concludes with takeaways for other programs providing legal services in an addiction medicine setting.

This article addresses the question what—if anything—we can and should expect from the practice of international criminal justice. It argues that neither retributive nor purely consequentialist, deterrence-based justifications give sufficient guidance as to what international criminal courts should aim to achieve. Instead, the legal theory of expressivism provides a more viable guide. Contrary to other expressivist views, this article argues for the importance of the trial, not just the punishment, as a form of expressivist messaging. Specifically, we emphasize (...) the communicative aspect of the judicial process. The final section, acknowledging the limited success of international criminal justice so far in terms of fulfilling its expressivist potential, diagnoses the main obstacles to, and opportunities for, expressivist messaging in the contemporary practice of international criminal justice. (shrink)

In German criminal law, intention is the label used not only for cases of knowledge and desire; it also includes cases of what the common law would call recklessness. German criminal law calls its approximation of recklessness dolus eventualis. It is on that concept that the article concentrates. After a brief review of the historical development of the German concept of intention, the author shows that dolus eventualis consists of two components: the cognitive element, which (as in the (...) common law) considers the state of the accused's knowledge that the offence may occur, and a volitional or dispositional element which is unknown to the common law. The author concludes that the volitional or dispositional element is not plausible, and that in any harmonization of concepts of intention in the criminal law of the European countries such an element should not be adopted. (shrink)

The sheep case in Analects 13.18 has generated a heated debate in contemporary Chinese philosophy for more than a decade. One side in this debate criticizes Confucius’ view in the sheep case and the other side defends Confucius’ position. Neither side’s reading of 13.18 is satisfactory. I argue that something important in the text has been overlooked and this omission may explain why neither side gives a satisfying reading. I offer in this essay a new reading of the sheep case (...) which pays attention to what the existent interpretations have overlooked in the text. This new focus will give us a new perspective to reframe the issue in question and to defend the Confucian position in a more convincing way. On the new interpretation, Confucius’ position in the sheep case suggests a sensible and reasonable way for the state to balance some important social interests which the state seeks to protect. (shrink)

Recent scholarship has given increasing attention to studying women’s involvement in conflict and mass violence. However, there is comparatively less discussion of the experiences of women as actors and perpetrators in conflict, and limited discussion of women as defendants in international criminal tribunals. This article explores this under-researched area. By analysing legal materials from the cases of six female defendants, this article investigates the extent to which legal discourses are shaped by stereotypes regarding femininity, conflict and peace. It identifies (...) three gender narratives—mothers, monsters and wives—used in relation to female defendants, which highlight the incompatibility of femininity with violence, and deny women’s agency in political and military contexts. Thus, this article concludes that female defendants in international criminal tribunals are viewed through gendered lenses, and discussed in accordance with gendered themes. This gendered justice is problematic, as it reinforces patriarchal gender stereotypes, and may hinder attempts to facilitate gender justice. (shrink)

This is a book about the role that psychological impairment should play in a theory of criminal liability. Criminal guilt in the Anglo-American legal tradition requires both that the defendant committed some proscribed act and did so with intent, knowledge, or recklessness. The second requirement corresponds to the intuitive idea that people should not be punished for something they did not do 'on purpose' or if they 'did not realize what they were doing'. Unlike many works in this (...) area, this book addresses the automatism and insanity defences by examining the types of functional impairment that typical candidates for these defences actually suffer. What emerges is a much wider conceptual framework that allows us to understand the significance of psychological states and processes for the attribution of criminal responsibility in a manner that is logically coherent, morally defensible, and consistent with research in psychopathology. (shrink)

This paper offers a critical reconsideration of the traditional doctrine that responsibility for a crime requires a voluntary act. I defend three general propositions: first, that orthodox Anglo-American criminal theory fails to explain adequately why criminal responsibility requires an act. Second, when it comes to the just definition of crimes, the act requirement is at best a rough generalization rather than a substantive limiting principle. Third, that the intuition underlying the so-called “act requirement” is better explained by what (...) I call the “practical-agency condition,” according to which punishment in a specific instance is unjust unless the crime charged was caused or constituted by the agent's conduct qua practically rational agent. The practical-agency condition is defended as a reconstruction of what is worth retaining in Anglo-American criminal law's traditional notion of an “act requirement.”. (shrink)

Even when a person appears to have consented to another’s interference with her interests, we sometimes treat this apparent consent as ineffective. This may either be because the law does not permit consent to validate the actions concerned, or because the consent is undermined by the presence of additional factors which render it insufficiently autonomous to be effective. In this paper I propose that the project of categorising and systematically analysing the latter set of cases, would be furthered by recognising (...) (1) that prima facie consent is undermined when the prima facie consenter’s autonomy to choose whether or not to consent has been unfairly constrained, and (2) that theoretical and doctrinal clarity can be promoted by analysing the factors that unfairly constrain autonomy in the criminal law using a framework developed in contract law to determine analogous questions arising in relation to assent to a contract. (shrink)

I discuss some of the roles that lay people play in relation to the criminal law, and how that law should figure in their practical reasoning: this will also cast light on the place of criminal law in a democratic republic. The two roles discussed in this paper are those of citizen, and juror. Citizens should be able to respect the law as their law – as a common law; but this must be a critical respect, captured in (...) the idea of ‘law abidance’ as a civic virtue. Jurors are tasked with making normative judgments of guilt or innocence, as part of a process through which those accused of criminal wrongdoing are called to answer to their fellow citizens: they must therefore be able to understand the law, and make it their own – which raises the question of whether jury nullification can be an appropriate response to unjust laws. (shrink)

On November 2, 2004, California voters elected to radically expand their state criminal DNA database through the passage of Proposition 69. The approved ballot initiative authorized DNA collection and retention from all felons, any individuals with past felony convictions – including juveniles – and, beginning in 2009, all adults arrested for any felony offense. This dramatic database expansion threatens civil liberties and establishes a dangerous precedent for U.S. criminal databases.

In the early 18th Century, Daniel Defoe found it natural to write a novel whose heroine was a sexually adventurous, socially marginal property offender. Only half a century later, this would have been next to unthinkable. In this paper, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender and social order in 18th and 19th Century (...) England. Drawing on law, literature, philosophy and social history, I argue that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalisation of women. I focus in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about gender, social order and individual agency. (shrink)