This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the author goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying (...) detailed attention to cases. The book is also unusual in that it grapples with English, Scots and US law, showing great breadth of research as well as philosophical sophistication. This is a work which is likely to become a seminal study and a major contribution to the study of law and legal philosophy. (shrink)

In most penal systems, success is punished more than failure. For example, murder is punished more severely than attempted murder. But success or failure is often determined by luck. It thus appears that punishment is allotted on the basis of arbitrary factors. The problem of criminal attempts is the question of how to best resolve this apparent tension. One particularly sophisticated attempt at resolution, first developed by David Lewis, holds that such differential punishment is not unjust when understood (...) as a natural penal lottery. What is most interesting about this view is that it does not appear to involve a commitment to resultant moral luck. I argue that the natural penal lottery fails to deliver justice. Upon analysis, it carries the same implication that it sought to avoid—namely, a commitment to resultant moral luck. I then argue that there can be, in principle, no penal lottery that delivers justice, natural or otherwise. (shrink)

An investigation of criminal attempts unearths some of the most fundamental, intriguing and perplexing questions about criminal law and its place in human action. When does attempting begin? What is the relationship between attempting and intending? Do we always attempt the possible and, if so, possible to whom? Does attempting involve action and does action involve attempting? Is my attempt fixed by me or can another perspective reveal what it is? How 'much' action is needed for an (...) attempt, how 'much' intention is needed and can these matters be decided categorically? Bebhinn Donnelly-Lazarov's answers to these questions will interest criminal law theorists, philosophers and lawyers or law reformers, who encounter the mixed practical and philosophical phenomenon of attempting. Inspired by G. E. M. Anscombe's philosophy, Part I examines attempting generally and its relationship with intention, action subjectivity, and possibility. From the conclusions reached, Part II proposes a specific theory of criminal attempts. (shrink)

Central to Gideon Yaffe's powerful theory of the legitimate criminalization of unsuccessful attempts is his according to which, I argue that this principle, taken together with Yaffe's theory of the nature of attempts, threatens to lead to a normatively problematic conclusion in support of the legitimate criminalization of attempts that are merely a matter of thinking and do not involve action in the public space. And I argue that Yaffe's efforts to block this conclusion are themselves problematic. (...) This leads to a proposed revision of the one that draws on plausible normative views about the nonlegitimacy of criminal sanctions in cases of attempts that are merely a matter of thinking and do not involve action in the public space. (shrink)

Criminal attempts require intent to commit an offence. But what constitutes such intent? Some cases are fairly straightforward. I act with intent to convert stolen goods if I intend that the goods I purchase be stolen. A man acts with intent to commit rape if he intends that the sexual intercourse be non-consensual. Other cases leave room for reasonable disagreement. Did a man intend to convert criminal property when he purchased goods which he suspected might be stolen? (...) And did a man intend to rape a woman when he tried to have intercourse with her and was reckless about consent? Does recklessness as to the circumstance elements of an offence suffice for intent? Building on the view that attempts are failed attacks (as opposed to acts of endangerment), I argue that recklessness about circumstances is not enough for intent since such recklessness amounts to an act of endangerment. This is not to suggest that a man does nothing wrong in trying to have sex with a woman while being reckless about consent; it is to argue that he should be convicted of an endangerment offence, rather than an attempt. If we take seriously the idea that attempts are failed attacks, and that attacks and endangerments constitute different types of moral wrong, we have good reason to preserve this distinction in our offence labels by insisting that the fault element for attempts should require at least knowledge or belief as to the relevant circumstances of an offence. (shrink)

In the criminal law, the law of attempts is of comparatively recent vintage. It is part of an important contemporary legal trend towards early intervention in the criminal process. There are now a substantial number of crimes on the books that, like the crime of attempt, only require that the perpetrator start down the road to carrying out his criminal intentions and do not require him actually to have harmed his victim. Besides the law of (...) class='Hi'>attempts, these new crimes include conspiracy and solicitation, forgery and counterfeiting, the possession offences, even corruption of youth. In all these cases, the law is stepping in to forestall harm, rather than waiting until a harm has already happened. (shrink)

It is widely held that the proper role of criminal punishment is to ensure in a cost-efficient manner that criminal laws will be obeyed. As James Buchanan puts it,the reason we have courts is not that we want people to be convicted of crimes but that we want people not to commit them. The whole procedure of the law is one, essentially, of threatening people with unpleasant consequences if they do things which are regarded as objectionable.According to the (...) deterrence theory of punishment, which I will here accept without argument in order to tease out some of its implications, legislators must be aware of opportunities to maximize the threat value of criminal prohibitions. By maximizing deterrence, we minimize the cost of crime. On the other hand, creating these threats, and carrying them out, is also costly. So we also wish to minimize the cost of avoiding crime. An efficient deterrent, therefore, will be one which minimizes the sum of the costs of crime and crime avoidance, where ‘cost’ is to be broadly construed. (shrink)

Gideon Yaffe’s “subjectivism about attempts” rest on the Transfer Principle: “If a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” From the perspective of a moral concern with culpability, this principle seems to get to the heart of the matter: the true essence of what is wrong with attempting to commit a crime. Unfortunately, Yaffe’s argument for the Transfer Principle is based on an equivocation and therefore (...) logically unsound. The moral core of the Principle is still sound, but we can’t tell from Yaffe’s book how far that principle would take us in the criminal law. (shrink)

Issues include attempts generally; the problem of outcome luck; the impossibility defense; physical movement and intent; and reckless attempts, attempted rape, and attempted theft. In the final section, I offer a hypothetical that challenges Prof. Donnelly-Lazarov's theory.

Gideon Yaffe presents a ground-breaking work which demonstrates the importance of philosophy of action for the law. Many people are serving sentences not for completing crimes, but for trying to. Yaffe's clear account of what it is to try to do something promises to resolve the difficulties courts face in the adjudication of attempted crimes.

A critical discussion of Gideon Yaffe's "guiding commitment" account of attempts, with special reference to attempts in the criminal law.

In the court of law, a person can be punished for attempting to commit a crime. An open issue in the study of Artificial Intelligence and Law is whether the law of attempts could be formally modelled. There are distinct legal rules for determining attempted crime whereas the last-act rule (also called proximity rule) represents the strictest approach. In this paper, we provide a formal model of the last-act rule using structured argumentation.

Criminal attempts, it is often said, are crimes of intention. While many complete crimes can be committed recklessly, criminal attempts require “purposive conduct”; in attempts “the intent is the essence of the crime.” But what kind of intention is required; what must be intended, or purposed, by someone who is to be guilty of a criminal attempt?

The use of artificial intelligence as an instrument to assist judges in determining sentences in criminal cases is an issue that gives rise to many theoretical challenges. The purpose of this article is to examine one of these challenges known as the “input problem.” This problem arises supposedly due to two reasons: that in order for an algorithm to be able to provide a sentence recommendation, it needs to be inputted with case specific information; and that the task of (...) presenting an adequate picture of a crime often turns out to be highly complex. Even though this problem has been noted since the earliest attempts at developing sentencing support systems, almost no one has considered the ethical nature of this challenge. The aim of this article is to fill that void. First, it is shown that the input problem has been subject to somewhat different interpretations. Second, several possible answers as to when and why the problem constitutes an ethical challenge are considered. Third, a few suggestions are presented as to how undesirable implications of complexity at the input stage might be ameliorated by tailoring the way sentencing algorithms are developed and used in the work of criminal courts. (shrink)

In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the “Transfer Principle.” This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections (...) to Yaffe’s argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle. (shrink)

Once commonly held, the claim that international prosecutions have a valuable role to play in transitional processes has in recent years come under attack. This attack has generally been grounded in the assertion that inter-national criminal prosecutions undermine reconciliation.I believe that the international criminal prosecutions in general and the International Criminal Court (ICC) in particular can play a meaningful role in sustaining peace and making transitional periods smoother and faster. However, the role the ICC can play in (...) the transitional processes is undermined by attempts to muddle the criminal process with reconciliatory and restorative aims . This muddling leads to problems not only in the way the ICC is understood and the way the Rome. (shrink)

How can criminal punishment be morally justified? Zisman addresses this classical question in legal philosophy. He provides two maybe surprising answers to the question. First, as for a methodological claim, it argues that this question cannot be answered by philosophers and legal scholars alone. Rather, we need to take into account research from social psychology, economy, anthropology, and so on in order to properly analyze the arguments in defense of criminal punishment. Second, the book argues that when such (...) research is properly accounted for, none of the current attempts to justify criminal punishment succeed. But that does not imply that the state should do nothing about criminal wrongdoing. Rather, the arguments that were supposed to justify criminal punishment actually speak in favor of an alternative approach to criminal law: restitution to the victim and restorative justice. That is to say, the state should coerce offenders to provide restitution for the harm inflicted on victims, and whenever possible restorative approaches should be taken to address criminal wrongdoing. (shrink)

Criminal law practices in the US, including policing and incarceration, have drawn heavy criticism for their disproportionate impact on black people, particularly black men. At the same time, some feminist scholars and activists advocate for increases in criminal law responses to sexual assault, including expanding criminal statutes to cover more instances of sexual assault and increasing sentencing guidelines. These reforms are often justified by claims that criminal law should express more feminist values and reject sexist social (...) schemas. This paper makes the case that criminal legal interventions aimed at changing sexist social schemas, such as ‘rape culture,’ are unlikely to be successful because criminal law is effective at maintaining existing social norms, but bad at introducing novel ones. Similarly, in the US, criminality has been ideologically linked to blackness, so attempts to use the stigma of criminality to combat sexual violence are likely to reinforce anti-black racism. The very meaning of a criminal law depends on related social schemas, and the racist social schemas associated with criminality undermine the ability of criminal legal responses to present anti-sexist values. At best, criminal legal reforms aimed at expressing the equal dignity of women will be ambiguous because their meaning is negotiated by existing sexist and racist social schemas. Thus, penal expressivism cannot offer a justification for using criminal law to combat sexual assault. (shrink)

The modern Lithuanian legal doctrine recognises that criminal liability is a last resort (ultima ratio) protecting the society from various law violations. This idea has got deep roots in criminology and is obviously based on the position of rational approach towards the state criminal policy. However, it is not clear whether it is of obligatory legal status to the legislature and the courts. This article attempts to present the idea of a last resort as a concept based (...) on the constitutional principles of the rule of law, justice, proportionality and rationality in the legislation and case law. The author concludes that the main precursors of the ultima ratio principle are the German legal doctrine of protection of legal goods (Rechtsgüterschutz) and Harm principle respected in the common law tradition, as well as the need for protection of human rights in the democratic world. These concepts raise the duty of the legislator to justify the act of criminalisation by legitimate purpose and to comply with certain constitutional limits of application of criminal law. The idea of criminal liability as a last resort is recognised both in the jurisprudence of the Constitutional Court (obiter dictum) and in the practice of the Supreme Court of Lithuania reasoning particular decisions in criminal cases, especially delimiting criminal and other types of legal liability. The author concludes that the fact of discrepancy of criminal law to ultima ratio test can be one of the arguments in support of its objection to the Constitution and even the European Convention on Human Rights and Fundamental Freedoms. At the same time, the author of the article has found that many norms of the Criminal Code are in conflict with the idea of a last resort. (shrink)

R. A. Duff, Criminal Attempts Oxford: Clarendon Press, 1996, xxvii + 420 pp.

The law relating to the conduct requirement for criminal attempts is confused and incoherent. This article examines this incoherence, rejects the Law Commission's provisional proposals to split the crime of attempt into two separate inchoate offences and suggests a reformulation of the conduct requirement in attempts.

The authors of Crime and Culpability hold a subjectivist theory of criminal culpability according to which the core concept in culpability is subjective recklessness, negligence is not culpable, and it is irrelevant to culpability whether or not a criminal act results in harm. I argue against these three theses and criticize the authors' views on the structure of criminal law, criminal defences, criminal attempts, and codification.

The book defines and critically discusses the following five principles: the harm principle, legal paternalism, the offense principle, legal moralism and the dignity principle of criminalization. The book argues that all five principles raise important problems that point to rejections (or at least a rethink) of standard principles of criminalization. The book shows that one of the reasons why we should reject or revise standard principles of criminalization is that even the most plausible versions of the harm principle and legal (...) paternalism that have been offered so far are rendered redundant by general moral theories. Furthermore, it demonstrates that the other three principles (or versions thereof), the offense principle, legal moralism and the dignity principle of criminalization, can either be covered by the harm principle, thus making these principles also redundant, or be seen to have what look like other unacceptable implications (e.g. that versions of legal moralism are based on speculative and incorrect empirical assumptions or violate what is called the criminological levelling-down challenge). As such, there is reason to move beyond traditional principles of criminalization, and instead to investigate alternative principles the state should be guided by when attempting to justify which kinds of conduct should be criminalized. Moreover, this book presents and defends such a principle – the utilitarian principle of criminalization. (shrink)

I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).

In the last two decades there has been a meteoric rise of international criminal tribunals and courts and also a strengthening chorus of critics against them. Today it is hard to find strong defenders of international criminal tribunals and courts. This book attempts such a defense against an array of critics. It offers a nuanced defense, accepting many criticisms but arguing that the idea of international criminal tribunals can be defended as providing the fairest way to (...) deal with mass atrocity crimes in a global arena. Fairness and moral legitimacy will be at the heart of this defense. The authors take up the economic and political arguments that have been powerfully expressed, as well as arguments about sovereignty, punishment, responsibility, and evidence; but in the end they show that these arguments do not defeat the idea of international criminal courts and tribunals. (shrink)

What is a crime? A common answer is that crimes are harms. One particular argument is that morality forms the connection between crimes and harms: crimes are not any kind of harm, but specifically a kind of immorality. This position is consistent with natural law jurisprudence which claims that law and morality are inseparably linked. It is also consistent with standard defences of retribution whereby punishment is justified where deserved and to the degree deserved. Retributivist desert is present for individuals (...) that possess some degree of moral responsibility for causing or attempting to cause evil. For example, the murderer deserves severe punishment because he is morally responsible for another person’s death and this act is sufficiently evil to warrant severe punishment. -/- The idea that crimes are harms to morals — and so their immorality informs their criminality and the corresponding severity of punishment — has also found favour with so-called ‘expressivist’ theories of punishment defended by Joel Feinberg, Antony Duff and others. These theories argue that punishment has an expressivist function of communication public disapproval to criminal offenders for their moral wrongdoings where punishment is proportionate to immorality. -/- The justification of crimes as harms to morals is part of a venerable tradition that has come to be increasingly seen as discredited. Most academics working in law (and even more practising lawyers) reject natural law jurisprudence and support some version of the separability thesis of legal positivism where law and morality are held to be separable, but not intrinsically and necessarily linked. Yet, curiously, retributivist theories, including expressivism, have been on the ascendency with a growing number of legal philosophers defending the idea of crimes as harms to morals and, therefore, moving in a contrary direction to most others working in law and academic law. -/- I believe this general position is deeply problematic and should be rejected. This chapter focuses specifically on expressivist theories as the increasingly more popular variant of retributivism in academic circles today. The next section provides an overview of expressivism. The following sections argue that it is not compelling both as a view about the criminal law, but also as a theory about punishment. I close the chapter with ideas about criminal harms might be better understood. I argue that crimes might be a kind of harm, but not the kinds of harm endorsed by retributivists and, more specifically, expressivists. (shrink)

In most countries, failed criminal attempts are punished less severely than those that succeed. Many philosophers, including myself, have argued that differential punishment can be justified. However, in a recent paper, Hanna raises objections to defenses of differential punishment, claiming that such policy goes against our “desert intuitions” and also cannot be justified on utilitarian grounds. I argue in this paper that Hanna’s desert-based and utilitarian objections can be undermined. Further, they are valid only within moral theories that (...) take the agent to be an independent self, whose responsibility rests on his or her intentions and deliberations alone. However, differential punishment can be justified in a different kind of moral theory, in which there are good reasons to give luck a role to play. (shrink)

Criminal law is one of the regulatory tools being used in the United States to influence risk behavior by people who have HIV/AIDS. Several different types of laws have been or could be used in this way These include:HIV-specific exposure and transmission laws — i.e., laws that explicitly mention and exclusively apply to conduct by people with HIV;public health statutes prohibiting conduct that would expose others to communicable diseases and/or sexually transmitted diseases ; andgeneral criminal laws governing attempted (...) murder and assault. (shrink)

Why is American punishment so cruel? While in continental Europe great efforts are made to guarantee that prisoners are treated humanely, in America sentences have gotten longer and rehabilitation programs have fallen by the wayside. Western Europe attempts to prepare its criminals for life after prison, whereas many American prisons today leave their inhabitants reduced and debased. In the last quarter of a century, Europe has worked to ensure that the baser human inclination toward vengeance is not reflected by (...) state policy, yet America has shown a systemic drive toward ever increasing levels of harshness in its criminal policies. Why is America so short on mercy? In this deeply researched, comparative work, James Q. Whitman reaches back to the 17th and 18th centuries to trace how and why American and European practices came to diverge. Eschewing the usual historical imprisonment narratives, Whitman focuses instead on intriguing differences in the development of punishment in the age of Western democracy. European traditions of social hierarchy and state power, so consciously rejected by the American colonies, nevertheless supported a more merciful and dignified treatment of offenders. The hierarchical class system on the continent kept alive a tradition of less-degrading "high-status" punishments that eventually became applied across the board in Europe. The distinctly American, draconian regime, on the other hand, grows, Whitman argues, out of America's longstanding distrust of state power and its peculiar, broad-brush sense of egalitarianism. Low-status punishments were evenly meted out to all offenders, regardless of class or standing. America's unrelentingly harsh treatment of trangressors--this "equal opportunity degradation"-- is, in a very real sense, the dark side of the nation's much vaunted individualism. A sobering look at the growing rift between the United States and Europe, Harsh Justice exposes the deep cultural roots of America's degrading punishment practices. (shrink)

The authors expose a challenge that legal dogmatics represents to our legal institutions. Legal dogmatics often claims that it plays a necessary role in identifying legal rules and in solving their indeterminacies. Thus, legal dogmatics is to be viewed as an indispensable complement to legislation. Like legislation, dogmatics also attempts to provide judges with precise guidelines to help them pass the right decisions and avoid the arbitrary ones. Only under this assumption does dogmatics help to make more predictable decisions. (...) However, the problem of dogmatics consists that the search for precision which is to intended to limit the arbitrariness of judicial decisions calls for distinctions that are per se arbitrary ones. In some cases, this arbitrariness results from an indeterminacy generated by vague rules, while in other cases the application of precise rules leads to arbitrariness because officials depart from the reasons that ground them. The challenge of dogmatics is to show that its contribution to rationality can be perceived as an improvement on the legislator’s contribution. That is, dogmatics must show why its rules can succeed where legislation inevitably fails for conceptual reasons. The authors of this paper claim the opposite. The application of dogmatic rules has the same conceptual difficulties as the application of legislated rules alone.Moreover, dogmatic solutions often contend with other formal justifications, i.e., reasons which ground legislated rules. (shrink)

Gideon Yaffe's Attempts is a masterfully executed philosophical investigation of what it means to attempt something. Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on and be used to criticize the law's understanding of those crimes. I focus exclusively on the relevance of Yaffe's philosophical analysis of attempts to the criminal law of attempts. I assume that Yaffe's account of (...) what it is to attempt something is basically correct and ask whether the criminal law uses in the way Yaffe uses it, and whether it should use Yaffe's conception of an attempt. I conclude that a lot of criminal-law doctrine, including, very importantly, the influential Model Penal Code's treatment of attempts, is inconsistent with Yaffe's conception of attempts. Because Yaffe is principally interested in what it means to attempt something rather than in the criminal law's treatment of attempts, I believe he misanalyzes the problem of factual versus legal impossibility. And Yaffe's chapter on inherently impossible attempts concludes by positing a quite paradoxical type of criminal attempt, one that is indeed an attempt but for which the defendant should not be convicted because the evidence of its commission is insufficient. I find Yaffe's argument to this effect opaque and therefore unconvincing. (shrink)

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and (...) the Humean approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment. (shrink)

I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how (...) the criminal law at any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justice—if the state ceased to impose punishments. (shrink)

First paragraph: The awesome range of Heike Jung’s work—over different aspects of criminal law, different jurisdictions and traditions, different disciplines and languages—makes life both easier and harder for contributors to his Festschrift: easier, because one can choose almost any criminal law topic and be confident that it will connect to his work; harder (for those with the British vices of monolingualism and intellectual parochialism), since one’s paper will display the linguistic, jurisdictional or intellectual limitations that Heike Jung’s work (...) so impressively transcends. In an attempt to overcome some of those limitations, I will discuss a topic that concerns criminal trials and the scope of the criminal law, through the distinction between crimes (Straftaten) and ‘regulatory offences’ (Ordnungswidrigkeiten) which is more often formally drawn in Germany and other continental European systems than in English law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Criminal Law, Pain Relief, and Physician Aid in DyingFaye Girsh, Ed.D., Executive DirectorMadam:The article by Cantor and Thomas on “Pain Relief, Acceleration of Death, and Criminal Law” (KIEJ, June 1996) was a tortured attempt to develop criteria for the humane and compassionate physician who tries to serve the needs of a patient in unremitting pain. There are three areas that merit comment.The authors dealt with pain medications (...) that might have the undesirable side effect of causing death. They did not mention tolerance, which usually occurs in a patient with chronic pain and which would require exceedingly high doses to be effective. They did not mention barbiturates, which are preferable to opiates in causing death and which are used increasingly by compassionate physicians to answer the pleas of their suffering patients, but for which there is no excuse about alleviating pain. Would the criminal law just call the prescription of a lethal dose of barbiturates a reckless act and require conviction? Fortunately, juries, as the authors point out, do not balance these formulas on the head of a pin. When they see the circumstances under which these doctors do help their patients, they choose to nullify the law and would ignore the suggestions made in this article.The authors refer to the “consent” of the patient. They do not mention that these doctors are operating with more than consent; they are administering these medications because suffering patients are begging them to put them out of their pain and the indignities of the dying process. The article discusses the process as though it were the same as consent to elective surgery. These patients—with AIDS, cancer, and hopeless neurological degeneration—are not simply agreeing to a procedure; they are desperately seeking a way out. If the criminal law were to develop criteria for physician aid in dying, certainly one of them should be the active, witnessed, repeated request of such a patient for a certain, quick, painless, gentle death.The third point is that physicians do not face prosecution when administering no treatment to a patient whose life could be saved with treatment but who chooses not to receive it. This has been upheld by the U.S. Supreme Court; no criteria for suffering, alternatives, terminality, justifiability, or unbearability are required. The doctor can stand by while the patient dies what may be a protracted, difficult death, but it is within the law. What matters in this situation is the decision of the patient to refuse treatment, and that is absolute. How ironic that the patient who cannot refuse treatment must, with his or her doctor, jump through all these hoops to achieve a peaceful death.One worries that the physician who must balance the risk of “risky pain relief” against the accusation of recklessness will err in the direction of allowing [End Page 103] the patient to bear the pain rather than help with a dose of analgesics that might be considered beyond the stipulated “risk.”Why don’t we just be honest about it? Allow dying or hopelessly ill patients to make the decision about what they want by passing a carefully defined law allowing euthanasia rather than balancing the risk and trying to determine the “purpose” of the physician’s ministrations. We protect some patients from themselves while allowing others almost complete autonomy to make the choice of ending their lives. The authors were right in saying that proponents of rational laws consider this sheer hypocrisy.Faye Girsh, Executive DirectorHemlock Society U.S.A. Denver, COFaye Girsh misconceives our article’s objective as an “attempt to develop criteria” for the humane physician. Our goal in writing the paper was to analyze the current criminal law framework in the hope of sharpening debate and engendering normative critiques. We readily acknowledge tensions in the current legal framework and would support changes in that framework.Copyright © 1997 The Johns Hopkins University Press... (shrink)

Criminal justice is primarily designed to serve the public interest in relation to criminal acts. Restorative justice is designed to address the harm-related needs of individuals in the aftermath of wrongdoing. These distinct aims require such different processes and priorities that any attempt to integrate restorative justice within the criminal justice system will almost invariably undermine the quality and effectiveness of both. In this book, the author argues that the optimal relationship between the two should therefore be (...) one of maximum independence: the instruments of the state should not be used to impose or enforce the decision to participate in restorative justice, any component of the restorative justice process or its outcome. It is also suggested that, in the absence of legislative innovation, this kind of separation is likely to require that restorative justice is situated after a case has actually exited the justice system, or after it has, in legal terms, effectively done so, as in a post-sentence context. [Note: The publisher offers a 40% discount on this book (conditions apply). Please see the author's website: "Relational Approaches" for details.]. (shrink)

The article investigates the problem of the truth as the purpose of the criminal procedure, the problem of its cognition. Individuals carrying out criminal procedure activities (including the court) are servants of the procedural form and, at the same time, its hostages, therefore they are unable to approach the objective, absolute truth and should be content with the formal (legal) truth. This position falls under criticism. Attempts to artificial segmentation of the truth to its separate categories or (...) forms are nothing, but justification of the procedural erosion of a certain form. The article offers the opinion that the classical criminal procedure shall establish absolute, not formal (legal) truth. The truth is not only an aspiration of the criminal procedure, but, at the same time, a derivative, regulatory principle, the idea that works only in classical criminal procedure. This principle does not work in quasi-processes, i. e. in those criminal procedure forms that are organically separated from the classical procedure form. (shrink)

Whether attempts should be punished as severely as the completed crime poses fundamental problems concerning the proper goals of the criminal law and the philosophy of punishment. An answer to this question would require an assessment of the significance of the fact that harm occurs as a result of conduct. Does the occurrence of harm give us any reason for distinguishing between completed offenses and attempts? Contemporary theory is almost united in the view that the occurrence of (...) harm does not mark a moral distinction. Yet, there does seem to be a common intuition that a person is somehow more blameworthy if his conduct results in harm than if it does not. This distinction in gravity between attempts and the completed crime is also recognized in the law; most United States’ jurisdictions provide a lesser punishment for attempts. (shrink)

As the crime rate rises and attempts to rehabilitate criminals prove unsuccessful, attacks upon recent reforms in our handling of crime increase. In this book van den Haag offers both a theory of punishment which supports traditional penal policies and factual data which show the failure of recent reforms. van den Haag claims that the main purpose of a legal system is to preserve order but that not every system that does this is acceptable. Along with preserving order, a (...) legal system should also be retributively just, i.e., punish those and only those who deserve it, because only such a system will gain public support. Although van den Haag does not present an original thesis on the moral justification of punishment, he covers many important issues in a lucid fashion, argues forcefully for his views, and presents some new arguments. In his discussion of our legal system’s exclusion of illegally obtained evidence, he argues that such evidence should be admissible in court since the misconduct of the police is irrelevant to the guilt or innocence of the accused. If the police obtain evidence illegally, then they should be punished rather than society harmed by allowing the guilty to go free. In defending the death penalty, van den Haag contends that it is the opponents of the penalty’s effectiveness as a deterrent who have the burden of proof. Since, other things being equal, increasing the severity of the penalty decreases the incidence of various crimes, it must be assumed that the incidence of any crime can be decreased by increasing the severity of the punishment. Thus, without clear evidence to the contrary, the death penalty would have to be deemed likely to have a deterrent effect. The factual data presented by van den Haag is interesting and one recent experiment he discusses has produced particularly surprising results. This experiment on student cheating showed that the threat of punishment was effective in producing the desired behavior, but that exhortations to be honest were counterproductive.—M.G. (shrink)