1,720,968 research outputs found
Loss of Self-Control, Dual-Process Theories, and Provocation
Full text linkContemporary understanding of the provocation defense views the “loss of self-control” theory as the cornerstone of this partial excuse. In considering whether to reduce murder charges to manslaughter, juries and judges rely on this theory to determine if the defendant lost self-control after experiencing intense emotional arousal and if a reasonable person would have also likely lost self-control in similar circumstances. This Article questions this conventional wisdom by examining the various flaws embedded in provocation’s loss of self-control theory. It argues that the theory is both over- and underinclusive. It is overinclusive because it provides a basis for mitigation in cases where leniency is normatively unwarranted given policy considerations. It is also underinclusive because it only accommodates the typical reactions of angry defendants who manifest sudden impulsivity. It fails to help defendants who visibly appear calm and composed because their emotional arousal was triggered by a host of other emotions beyond anger—mostly fear, desperation, and hopelessness. This Article turns to psychological research on dual-process models to craft an alternative theory underlying the provocation defense. Drawing on these models’ two modes of thinking, it contends that provoked killers’ reactions may be understood as the result of emotions that shape actors’ judgment and decision-making processes. The Article uses the term “impaired judgment” to refer to these situations. Acknowledging both the promises and the pitfalls of this alternate theory, the Article advances two arguments. First, it posits that the concept of impaired judgment is better suited than loss of self-control to support provocation’s doctrinal framework. Second, it points to intrinsic limitations embedded in reliance on the loss of self-control theory, which is unable to account for provocation’s normative dimension. The theory must therefore be supplemented with a value-based component that would assist juries in determining the circumstances that make provocation adequate from a normative and evaluative perspective
Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization
Full text linkThis Article proposes a constitutional constraint to limit criminalization of victimless crimes and, particularly, to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.” To accomplish this goal, the Article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity, on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where they directly clash. This Article proposes guidelines for balancing these contrasting interests and then applies them to drug crimes, illustrating that adopting such guidelines would result in constraining the scope of substantive criminal law
Overcriminalizing Speech
No full textRecent years have seen a significant expansion in the criminal justice system\u27s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.
This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast with conventional wisdom\u27s assumption that the right to free speech is broadly protected under existing jurisprudence, much speech is currently overcriminalized under the endangerment justification. Free speech doctrines and criminal law are in tension with one another. While under its First Amendment jurisprudence the Court contracts government\u27s power to ban speech, criminal law constantly expands the scope of speech crimes.
The Article contends that existing doctrines attempting to explain this inconsistency fail to provide a principled explanation for the absence of First Amendment scrutiny from various types of speech crimes. To ameliorate this problem, this Article proposes a unified analytical framework for assessing when speech justifies criminalization and when it warrants constitutional protection. The proposal suggests that all speech crimes should be subject to constitutional scrutiny under free speech doctrines, as well as to additional constraints stemming from criminal law theory. This Article provides several factors to guide the judicial inquiry into determining the scope of criminal bans on speech
Compassionate Homicide
Full text linkAmple psychological studies demonstrate that emotions provide reasons for action and are powerful drivers of a host of behaviors, including criminal acts. Studies further establish that experiencing intense emotions might impair actors’ judgment and decision-making, sometimes culminating in committing homicide.
Existing criminal law doctrines only partially correspond to these findings. They recognize mostly anger and fear as underlying the excuses of provocation, imperfect self-defense, and duress by mitigating murder charges to manslaughter or otherwise excusing offenders. Currently, however, no doctrine recognizes compassion as a basis for mitigation. Under existing laws, an actor who intentionally kills a terminally ill or severely disabled close family member, wholly out of compassion for the victim, commits the crime of murder. The actor’s motive to end the victim’s suffering is irrelevant for determining the scope of criminal responsibility.
In recent years, legal scholars have developed a new field of study focusing on the interplay between law and the emotions, including among others, in the realm of criminal law. This Article contributes to existing literature in this area by suggesting that compassion is yet another emotion that may trigger certain actions. Advocating the adoption of a statutory affirmative defense that is grounded in compassion, this Article argues that recognizing this excuse is consistent with the rationales and reasoning underlying criminal law’s recognition of existing emotion-based excuses. This Article develops the theoretical and doctrinal bases for endorsing a compassion-based partial excuse by advancing three arguments. First, it contends that experiencing compassion towards a close family member might affect an actor’s judgment and decision-making, motivating them to kill. Second, it argues that from a policy-based perspective, recognizing a compassion-based excuse is normatively warranted because while the killing is neither justified nor fully excused, it is an understandable reaction given the circumstances the actor was facing. Third, this Article outlines some necessary constraints on the scope and limits of the partial excuse to ensure that it is applicable only in appropriate cases, where actors normatively deserve mitigation
Under-Prosecution Too
Full text linkConventional wisdom holds that the criminal legal system suffers from over-enforcement, including over-prosecution. This account, however, obscures data suggesting that some crimes, including sexual assault, are under-prosecuted. High attrition rates in sexual assault cases are caused not only by insufficient reporting and inadequate police investigation but also by prosecutors’ frequent refusal to file charges due to what they describe as “insufficient evidence.”Yet, studies suggest that the designation “insufficient evidence” is often a pretext, disguising the actual reason for prosecutorial declination decisions - prosecutors’ prediction of the low likelihood that hypothetical juries would convict, a test commonly referred to as the “convictability” standard.The under-prosecution of sexual assault is an especially disconcerting problem because victims of these crimes are often marginalized, including racial and other minorities, who have been under-served by a legal system that has failed to provide them with equal protection of law. The problem, however, has received only scant scholarly attention.This makes two contributions to existing literature. First, it argues that the convictability standard that prosecutors rely on to assess evidentiary sufficiency should be rejected. In its stead, this Article proposes the “reasonable prosecutor” standard for prosecutors to adhere to in deciding whether to bring sexual assault charges. Under this standard, the threshold is whether, as a legal matter, based on the law’s substantive definition of the crime and the likely admissible evidence, the suspect should be found guilty beyond a reasonable doubt. Second, this Article uses the under-prosecution of sexual assault as a case study for making broader arguments about the prosecutor’s role in promoting social justice goals. To send the expressive message that both defendants and victims deserve the law’s protection, this Article develops the Equitable Prosecution Model. The model uses the concept of equitable prosecution to justify a more vigorous prosecution of crimes like sexual assault that have largely been under-prosecuted. Drawing on a civil rights underpinning, and theorizing the roles for progressive prosecutors in curbing sexual violence, this model highlights the prosecutor’s role in bringing criminal charges for historically under-prosecuted crimes. It requires prosecutors to equitably balance defendants’ and victims’ conflicting interests. This model thus reconciles the goals of the BLM and #MeToo movements, demonstrating that they are complementary, rather than contradictory
Criminalizing Coerced Submission in the Workplace and in the Academy
Full text linkThis Article challenges the prevailing view that Title VII and Title IX provide a single conceptual model that fit all forms of sexual harassment. In particular, it questions the assumption that coerced sexual intercourse in the workplace and in the academy is merely another form of sexual harassment that can be addressed within the current legal framework. Rather, the current paradigm must be critically revisited in order to provide an alternative account of these “submission cases” that separately categorizes them and acknowledges their distinctive harms. Accordingly, this Article suggests that these cases should be criminalized, and elaborates upon the justifications and policy goals that support this choice and make it a desirable remedy. This Article further explores the practical ramifications of an alternative account by examining which criminal model is better suited to criminalize coerced submission. Comparing and contrasting a lack of consent model and a sexual coercion model, the Article hypothetically applies them to various cases that were litigated under the sexual harassment framework. This exercise demonstrates that the sexual coercion model provides a more comprehensive and pragmatic construct for criminalization. Therefore, this Article proposes the adoption of a specialized criminal statute based on the sexual coercion model that would criminalize supervisory sexual abuse of power within the workplace and the academy and identify several conditions that suggest that submission resulted from this abuse. Such a proposal would carefully target sexually abusive situations that may be plausible candidates for criminalization and offer a narrowly crafted prohibition that is both gender-and race-neutral and limited in scope to avoid over-criminalization
The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power
Full text linkThis Article argues that while rape law reform has accomplished significant changes in the past decades, the reform has since stalled. The contemporary focus on the element of consent might account for this stagnation. This move has both failed to effect instrumental change in the courts as well as in social norms, and is conceptually flawed and normatively misguided. The practical result of these deficiencies is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. While rape law typically criminalizes only the physically violent sexual attack, it refuses to criminalize an array of abuses, effectively disregarding prevalent forms of sexual violence and misconceiving the crime of rape. Statutory definitions of rape are inept and require an overhaul to better capture the harm and wrongdoing of sexual abuses that many victims still experience
Fear-Based Provocation
Full text linkThis Article offers three major contributions to challenge existing view of provocation: first, it considers psychological research that found that fear, similarly to anger, may also significantly interfere with individuals’ decision making processes by disturbing rational judgment, therefore sometimes leading to lethal aggression. Second, drawing on this research, this Article argues that provocation doctrine should be reconstructed to also include a fear-based prong. Third, recognizing fear-based provocation calls for rejecting the loss of control paradigm that currently dominates judges’ and jurors’ perception of the defense. In its place, this Article advocates focusing on the fearful defendant’s fear of violence threatened by the deceased that caused a significant impairment in the defendant’s thought processes, resulting in obscured judgment and reasoning. The reconstructed defense would also include an objective component, under which, the defendant would have to prove that a person of ordinary disposition would also experience such emotion and respond rashly without exercising reason and judgment
Overmedicalization of domestic violence in the noncarceral state
No full textScholars have recently cast doubt on the justifications for criminalization of domestic violence, arguing that the criminal legal system proves inadequate in preventing future battering. Domestic violence, the argument continues, is largely a public health problem, which calls for implementing noncarceral measures to effectively address it. Decriminalizing domestic violence aligns with broader reforms to defund police and decrease prosecution of many other crimes. A noncarceral alternative to criminalization requires divesting resources from police, prosecutors, and prisons, while investing resources in nonpunitive institutions, including healthcare systems.Health-based reforms to curb domestic violence underscore the central role that mental health measures play under a noncarceral regime. Rejecting the reliance on criminal measures to prevent domestic violence would make mental health professionals responsible for treating batterers who pose a risk to their intimate partners. Yet, conceptualizing domestic violence through a public health framework raises a host of concerns because medicalized interventions incorporate noncriminal, yet inherently coercive measures. These include mandatory treatment programs, surveillance, monitoring, reporting, and involuntary civil commitment. The emerging trend to adopt mental health interventions in lieu of criminal sanctions highlights the perils of overmedicalization of domestic violence, including depriving batterers’ liberties without robust adversarial proceedings and other due process protections.In examining the interrelationship between criminal law and public health’s mandatory measures, this Article makes two novel contributions. First, it argues that overmedicalization of domestic violence is yet another facet of the general medicalization phenomenon, defined as unjustifiably applying medical solutions to social problems. Second, this Article uses the treatment of domestic violence as a case study to demonstrate that alternatives to criminalization, often touted as “progressive” reforms, carry their own risks. The implications of this argument extend far beyond the domestic violence context; a myriad of medicalized substitutes to carceral tools exert substantial social control over people by managing and disciplining vulnerable communities, especially people of color and other historically disadvantaged groups. Overmedicalization may thus result in replacing states’ problematic “governing through crime” strategy with the equally troublesome “governing through medicine” model, which perpetuates similar harms that the criminal legal system has created
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