Legal Theory Blog

Heller on the Rome Statute in Comparative Perspective

Kevin Jon Heller has posted The Rome Statute in Comparative Perspective (THE STANFORD HANDBOOK OF COMPARATIVE CRIMINAL LAW, Kevin Jon Heller, Markus Dirk Dubber, eds., 2009) on SSRN.  Here is the abstract:

The Rome Statute of the International Criminal Court is both inspiring and frustrating. On the one hand, by providing detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility, the Statute represents the international community's most ambitious attempt to create a general and special part of international criminal law. On the other hand, most of the drafters of the Statute were diplomats who had no practical criminal law experience of any kind, much less academic expertise in international criminal law or comparative criminal law. As a result, the Rome Statute's substantive provisions are often confusing, contradictory, and of uncertain application - an "unsystematic conglomeration from a variety of legal traditions," as one scholar has memorably put it.

This draft book chapter attempts to provide a systematic and comparative overview of the substantive criminal law of the Rome Statute. Section I provides an introduction to the Statute: its drafting history, jurisdictional principles, sources of law, and rules of procedure and evidence. Section II discusses the Statute's general part: theories of punishment, liability requirements (acts and omissions, material and mental elements, modes of participation), defenses, and sanctions. Finally, Section III examines the Statute's special part: the conceptual structure of the crimes within the jurisdiction of the Court and the crimes themselves: genocide, crimes against humanity, war crimes, and aggression.

The chapter is aimed primarily at domestic criminal law scholars, particularly those with an interest in comparative criminal law. But it should be of interest to international criminal law scholars, as well.

Recommended!

Litton on Psychopaths & Responsibility

Paul Litton (University of Missouri School of Law) has posted Responsibility Status of the Psychopath: On Moral Reasoning and Rational Self-Governance (Rutgers Law Journal, Vol. 39, No. 349, 2008) on SSRN.  Here is the abstract:

Responsibility theorists frequently discuss psychopathy because it challenges various accounts of the capacities required for appropriate ascriptions of moral and legal responsibility. As often described, the psychopath has the capacity to reason practically but lacks the capacity to grasp and control himself in light of moral considerations. As portrayed, then, the psychopath resides in the area of disagreement between two philosophical camps: (i) theorists who put forth the general capacity for practical reasoning or rational self-governance as sufficient for an agent to be appropriately held morally responsible for his conduct; and (ii) theorists who view that general capacity as necessary but not sufficient for moral responsibility, additionally requiring the capacity to grasp and respond to distinctly moral reasons. On the former view, we may appropriately hold psychopaths responsible for their wrongful actions, but not on the latter.

This article does not aim to describe the opposing views and argue for one over the other. Rather, I propose to deflate the debate as far as possible, attempting to reduce the area of disagreement. Meaningful disagreement exists only if there are, or could be, agents who have an undiminished capacity for practical reasoning or rational self-governance, yet truly are incapable of moral reasoning. However, I suggest that the capacity for rational self-governance entails the capacity to comprehend and act on moral considerations; thus, to the extent that an individual truly is incapable of grasping moral reasons, we should expect to find deeper, more general deficiencies in that individual's rational capacities. I appeal to the work of leading researchers who study individuals with psychopathy to determine whether psychopaths do represent rational self-governors without the capacity to grasp moral considerations. I argue that this work strongly suggests that the psychopath's incapacity for moral reasoning is, indeed, evidence of more general deficits in the rational capacities required for fully accountable agency. The Article closes with relevant considerations for thinking about any implications for criminal law.

Simons on Mistakes in Criminal Law

Kenneth W. Simons (Boston University - School of Law) has posted Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction (Forthcoming 2009, Volume 3, Criminal Law and Philosophy) on SSRN.  Here is the abstract:

This article makes six points. First, under any plausible normative perspective, the distinction between mistake (and ignorance) of criminal law and mistake of fact must at least sometimes be drawn. Second, the fundamental distinction is between a mistake about the state's authoritative statement of what is prohibited ("M Law"), and a mistake about whether that prohibitory norm is instantiated in a particular case ("M Fact"). Third, when an actor makes a mistake about an evaluative criterion whose content the fact-finder has discretion to elaborate, it is impossible both to allow this discretion and to faithfully realize a jurisdiction's policy of treating M Fact and M Law differently. Fourth, the claim that every unreasonable M Fact is really a M Law elides important differences between the two kinds of mistake. Fifth, various borderline objections, such as the famous Mr. Fact/Mr. Law example, do not undermine the fundamental distinction, although in rare instances, they do constitute genuine counterexamples that do not effectuate the principles and policies that the distinction ordinarily serves; and even here, they are exceptions that prove (the rationale for) the rule. Sixth, specification or evolution of a criminal law norm, such as the criterion for nonconsent in rape law, can convert a legally relevant M Fact into a legally irrelevant M Law. This phenomenon does not undermine the fundamental distinction between these types of mistake; to the contrary, it reveals the significance of that distinction.

Clear, deep, and illuminating.  Highly recommended.  Download it while its hot!

Asimow & Weisberg on Lawyers Who Know Their Clients Are Guilty

Michael Asimow and Richard Weisberg (University of California, Los Angeles - School of Law and Yeshiva University - Benjamin N. Cardozo School of Law) have posted When the Lawyer Knows the Client is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature (Southern California Interdisciplinary Law Journal, Forthcoming) on SSRN.  Here is the abstract:

This article concerns a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty (usually because the client confessed to the lawyer), but the client insists on an all-out defense? Legal ethicists have struggled with this problem since the Courvoisier case in 1840, but it remains unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide interesting perspectives on the strong vs. weak adversarialism dilemma. According to numerous films, television shows and novels, the right answer to the lawyer's dilemma is no adversarialism at all. The good lawyer should betray evil clients to insure that the truth is discovered. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth. Literature casts doubt on whether a lawyer can know with certainty whether a client is telling the truth. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings.

Kim on Self Defense

Janine Young Kim (Marquette University Law School) posted The Rhetoric of Self-Defense (Berkeley Journal of Criminal Law, Forthcoming) on SSRN.  Here is the abstract:

he rhetoric of self-defense is a powerful instrument in the hands of legal actors to shape our understanding of justified violence in society. This rhetoric is based not in the legal definition of self-defense but rather in the paradigmatic situation of deadly response to deadly attack, which offers useful guidance in interpreting the law's required elements. However, the paradigm also tends to embrace claims of morality and right that threaten to expand self-defense beyond recognition to consider inappropriate values such as vengeance and punishment.

In this Article, the author argues that self-defense should be viewed not only as a moral but also as a core political concept - one that inspires the formation of civil society and the state under social contract theory. According to this view, self-defense and the criminal law share a common aim: to prevent harm and preserve life for peaceable coexistence. This common aim, which is more particularly expressed through political theory rather than moral philosophy, forms the substantive justification for self-defense in the criminal law.

Hoffman & King on the Federal Role in State Criminal Justice

Joseph L. Hoffmann and Nancy J. King (Indiana University School of Law-Bloomington and Vanderbilt University School of Law) have posted Rethinking the Federal Role in State Criminal Justice (New York University Law Review, Vol. 84, 2009) on SSRN.  Here is the abstract:

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments, except for cases including certain claims of actual innocence, retroactively applicable rules, or the sentence of death. The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services, an approach that can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

Heller on the International Criminal Court's "Situational Gravity" Standard

Kevin Jon Heller (University of Auckland - Faculty of Law) has posted Situational Gravity Under the Rome Statute on SSRN.  Here is the abstract:

The ICC is often derided as the "African Criminal Court." That criticism cannot easily be dismissed: all of the Office of the Prosecutor's (OTP) current investigations focus on African states - Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan - and it is analyzing the situations in three other African states, Cote D'Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq - the latter despite its conclusion that there was a "reasonable basis to believe" that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment. 

The OTP has not denied - nor could it - that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims. 

This essay critiques the OTP's quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that offend the fundamental values of the international community - those that cause "social alarm"; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

Highly recommended!

Kolber on Comparative Punishment

Adam J. Kolber (University of San Diego School of Law) has posted The Comparative Nature of Punishment on SSRN.  Here is the abstract:

Suppose we punished people by forced poverty. Instead of a traditional dollar fine, we would limit offenders' personal possessions to the bare essentials. For a one-year period of forced poverty, a billionaire would lose access to his billions, while a person with just the bare essentials would lose nothing. Clearly, a year of forced poverty has a disproportionally severe impact on the billionaire.

Now suppose instead that the billionaire and the poor person are sentenced to prison for a year. In prison, we will, in fact, punish them with forced poverty by limiting their personal possessions to just the bare essentials. Yet many people treat such sentences as equal because they have the same duration. How can forced poverty be an unfair stand-alone punishment but a fair one when combined with imprisonment?

The answer is that the punishment is unfair in both scenarios. We mistakenly evaluate the severity of prison by measuring only the condition that prison imposes on offenders, without looking at offenders' baseline conditions. This absolutist approach to punishment severity ignores half of what matters about punishment, because it fails to recognize that punishment is fundamentally comparative in nature. In order to judge punishment severity properly, I argue, we must compare an offender's unpunished, baseline condition to his worse, punished condition. The billionaire and the poor person differ in their baseline wealth, but as I explain, wealth is just one of many ways in which offenders' baselines differ. Proper recognition of the comparative nature of punishment requires us to either dramatically change our sentencing practices to take baselines into account or give up, in large measure, on the goal of proportional punishment.

And from the paper:

[I]magine that a homeless man is viciously beaten by Stuart and now lies bleeding on the ground. Unaware of precisely what happened to the homeless man, Tommy comes by and plucks three hairs from the head of the homeless man, causing him very modest additional pain. As a result of their actions, both Stuart and Tommy have causally contributed to the homeless man’s harmed condition. On an absolute view of harm, however, we cannot account for the much greater harm caused by Stuart than caused by Tommy. This is precisely how poor an absolute conception of harm is at assessing harm severity.

Is there some way we could account for the difference in what Stuart and Tommy did to the homeless man in absolute terms? Can we say that Stuart was a much more substantial cause of the homeless man’s final, absolute condition than Tommy was? No, we cannot. Doing so only hides the underlying comparative analysis. The difference in their causal contribution depends on the change in the homeless man’s condition caused by Stuart relative to the change in his condition caused by Tommy. The comparative conception of harm and punishment severity is inescapable.

Interesting and recommended.

Yankah on Virtue Jurisprudence

Ekow Yankah (Cardozo) has posted Virtue's Domain on SSRN.  Here is the abstract:

If at the end of your life you were told you had fulfilled all your moral duties, you would be proud. If you were told you only fulfilled your moral duties, you would be less proud. We all aim to do more than fulfill our duties. We wish to have been more generous than obligatory, more patient, more wise... in short, we wish to be virtuous. 

This insight, that there is more to moral well-being than either our moral duties or good consequences, is central to modern virtue ethics. In its important neo-Aristotelian strain, virtue ethics advocates that success in life is also determined by living an ethically rich life, showing sound practical reasoning and exhibiting the human virtues. 

Virtue ethics is also importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism. 

This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.

And from the paper:

A virtue-based theory must take some form of the promotion of human excellence as its primary commitment.150 Of course, an aretaic theory of law may view autonomy as important insofar as it is crucial to the development of human excellence.151 Viewing aretaic theory in this light makes it a great deal more plausible and attractive. After all, any sensible theory of the promotion of human excellence must make space for autonomy; space for choosing and learning to choose valuable ends. Aristotle, for example, importantly believed that part of becoming an excellent person was learning to choose the right acts for the right reasons.152 Similarly, it is a familiar argument in liberal thinking that one cannot be coerced into living the good life because it is a precondition for living the good life that one chooses it. Dworkin, for example, notes that one cannot live a good life if forced to live against one’s own convictions.153 Accordingly, Kymlicka has argued that an authentically good life must be lived “from the inside, in accordance with our beliefs about what gives value to life.”154

But one must be careful in making space for autonomy in a virtue ethic, for a single note may dominate the harmony. If an aretaic theory comes to view autonomy as constitutive of human excellence such that everything required to protect autonomy is co-extensive with promoting human excellence, there will be 148 Id.little distinctively aretaic about it.155 This may well be an acceptable détente, with both theories sharing every conclusion but disagreeing as to why. If this is true, so be it… But it does seem to be suspicious. One fears that this conclusion simply rereads aretaic theories as Kantian autonomy (perhaps without rules). A pale sort of virtue as veneer.

What is needed to disentangle the intrinsic values of virtue and autonomy is a case where they are in conflict. Let us take the case of a particular type of harm-to-self. Imagine a fully-functioning, normal adult, free of excessive burdens on her choices, who has autonomously chosen a life that we will stipulate sets her against the human excellences. Let us say, despite a number of reasonable choices, that she has chosen to become a prostitute – a modern Séverine Serizy. Of course, some may find this example hopelessly parochial or prudish, but grant, for the moment, that a proper relationship to one’s own sexuality and sexual intimacy makes Séverine’s submitting sex for sale harmful to herself. It is also fair to note that, though complicated to some, prostitution is a wrong that coincides with many people’s pre-legal sense of wrong. After all, it is currently illegal in all but a few places in the United States. Let us, to be sure, propose that she also believes that she is making a poor choice.156

I take it a robust aretaic theory of law would find Serizy deeply troubling, leveling punishment unless there were strong countervailing reasons that would weaken her well-being or the well-being of society. It is important to note aretaic theorists may have good reasons to avoid punishing prostitution. Perhaps criminalizing this behavior will prevent people from making important decisions about the role of work and sexuality in their lives necessary to develop into successful persons. Perhaps sound practical reasoning requires the ability to exercise poor reasoning or prostitution is only mistakenly believed to be an act that harms others. More plausibly, the intrusive methods necessary to criminalize and enforce certain laws may be too damaging to human society. Thus, there is no need to assume that an aretaic theory would necessarily outlaw prostitution.

Still, in the absence of the kind of countervailing reasons above, I take it an aretaic theory should be ready to prohibit Serizy’s actions.

Highly recommended.

I am one of the central targets of this essay, although my own work on virtue jurisprudence does not articulate a theory of criminal punishment.  My general views are set articulated most fully in two papers:

Virtue Jurisprudence: A Virtue-Centered Theory of Judging

Natural Justice

Revised versions of these essays and many other pieces on aretaic legal theory can be found in the anthology, Virtue Jurispduence.

Just one quick comment on Yankah's argument.  Yankah's conclusion that virtue ethics is inconsistent with a theory that views autonomy as the highest (and perhaps only noninstrumental) value is, in my view, correct.  But it does not follow that virtue ethics must relegate autonomy to the role of an instrumental good--there are other possibilities.  For example, it could be that some form of autonomy is constituitive of human flourishing.  Certainly, an Aristotelian virtue ethics could (and in my view should) adopt this view of the relationship between autonomy and flourishing.  If an appropriately conceptualized view of human autonomy is accepted as a constituent part of human flourishing and if the proper end of law is to promote human flourishing, then the law should aim to create the conditions for the development, maintenance, and excerize of autonomy by humans.  But as Yankah sees, this aim would be integrated with the promotion of other aspects of human flourishing.

Yankah's hypothetical is an interesting one.  From a practical perspective, given the actual conditions of human life, the question whether Séverine's actions should be subject to criminal punishment is likely to be determined by a variety of empirical facts.  For example, it may be the case that criminalization of prostitution leads to conditions that systematically undermine human flourishing by isolating sex workers and facilitating their exploitation.  Ekow asks us to imagine a possible world in which there were no such consequences--for example, a world in which the only consequence of criminalization would be to reduce the incidence of prostitution and result in punishments that would not themselves seriously impair the flourishing of those who incurred them.  Even with these assumptions in place, Yankah needs another assumption--that engaging in sex work is inconsistent with human flourishing (otherwise there would be no reason internal to aretaic theory to criminalize it).  Where the hypothetical goes from there must surely depend on the particular reasons for concluding that sex work is contrary to human flourishing.  For example, we might suppose that sex work systematically undermines the capacity of humans to engage in meaningful relationships involving intimacy.  In a possible world in which all of these assumptions held, then an aretaic theory of criminal law might lead us to the conclusion that Séverine's actions should be prohibited by law.  Much more would need to be said, but this case (in my opinion) would count in favor of an aretaic theory of criminal law and against an autonomy based theory--insofar as the our considered intuitions about the case are concerned.

Read Yankah!

Ramsey on Detention of Material Witnesses

Carolyn B. Ramsey (University of Colorado Law School) has posted In the Sweat Box: A Historical Perspective on the Detention of Material Witnesses (Ohio State Journal of Criminal Law, Vol. 6, No. 2, 2009) on SSRN. Here is the abstract:

After the September 11 terrorist attacks, the Justice Department detained scores of allegedly suspicious persons under a federal material witness statute - a tactic that provoked a great deal of controversy. Most critics assume that the abuse of material witness laws is a new development. Yet, rather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects. Fears of extraordinary violence or social breakdown played at most an indirect role in its advent and growth. Rather, it has long been used to obtain prosecution evidence in ordinary cases of murder, robbery, prostitution, and other street crimes. Historically, no stark divide between the innocent witness and the suspected criminal existed in the minds of the police. Indeed, material witness detention contributed to the rise of incommunicado interrogation and numbered among the tactics identified in the Wickersham Commission's expose of the third degree in 1931.

This Essay demonstrates that the story of material witness detention is one of stasis, not of change. For more than a century, the field practices of police and magistrates have been unresponsive to reforms in statutory and constitutional law or to sporadic public pressure on behalf of detainees deemed to have knowledge of a crime. In telling such a story, this Essay seeks not to defend the Justice Department, but to suggest that intense scholarly focus on September 11 as a watershed in the history of criminal procedure obscures ways in which the gradual consolidation of governmental power over more than a century has fostered an increasingly coercive and secretive relationship between the individual and the police.