Excusing Necessity and Terror: What Criminal Law Can Teach Constitutional Law

This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty theory, and the conformity to moral expectation theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The author argues that this theory would excuse the altruistic no less than the self-preferring murderer.     

Guilt Beyond Guilt: From Political Theory to Metaphysics with Herbert Morris

As it is presently conceptualised and applied in criminal law, moral guilt is bound by a narrow, legalistic framework that is rooted in a liberal political philosophy. In this paper, drawing on the work of Herbert Morris, I seek to open up and deepen the concept of moral guilt. I do this through the development of a four‐fold typology of guilt that charts Morris's journey from political theory to metaphysics that includes the following forms: moral‐legal guilt; moral‐psychological guilt; quantum guilt; and metaphysical guilt. In deepening our understanding of moral guilt, the typology compels us to consider alternative conceptions of guilt that would take into account a person who feels guilt not only towards others, but also towards themselves and the world. I argue that Morris's journey has important implications for how we think about the critical relationship between theory and law as well as restorative justice.     

Does Ethical Theory Have a Future in Bioethics?

Although there has long been a successful and stable marriage between philosophical ethical theory and bioethics, the marriage has become shaky as bioethics has become a more interdisciplinary and practical field. A practical price is paid for theoretical generality in philosophy. It is often unclear whether and, if so, how theory is to be brought to bear on dilemmatic problems, public policy, moral controversies, and moral conflict. Three clearly philosophical problems are used to see how philosophers are doing in handling practical problems: Cultural Relativity, and Moral Universality, Moral Justification, and Conceptual Analysis. In each case it is argued that philosophers need to develop theories and methods more closely attuned to practice. The work of philosophers such as Ruth Macklin, Norman Daniels, and Gerald Dworkin is examined. In the writings of each there is major methological gap between philosophical theory (or method) and practical conclusions. The future of philosophical ethics in interdisciplinary bioethics may turn on whether such gaps can be closed. If not, bioethics may justifiably conclude that philosophy is of little value.     

Could the Presumption of Innocence Protect the Guilty?

At criminal trial, we demand that those accused of criminal wrongdoing be presumed innocent until proven guilty beyond any reasonable doubt. What are the moral and/or political grounds of this demand? One popular and natural answer to this question focuses on the moral badness or wrongness of convicting and punishing innocent persons, which I call the direct moral grounding. In this essay, I suggest that this direct moral grounding, if accepted, may well have important ramifications for other areas of the criminal justice process, and in particular those parts in which we (through our legislatures and judges) decide how much punishment to distribute to guilty persons. If, as the direct moral grounding suggests, we should prefer under-punishment to over-punishment under conditions of uncertainty, due to the moral seriousness of errors which inappropriately punish persons, then we should also prefer erring on the side of under-punishment when considering how much to punish those who may justly be punished. Some objections to this line of thinking are considered.     

再议“合一论”与“复合罪过说”

德国关于间接故意与有认识过失的合一论的主张与我国学者所提出的复合罪过的概念各有特定含义,“合一论”的罪过形式的出现有其特定的类型划分和观念为前提。复合罪过现象的原始含义不同于合一论。应该结合我国《刑法》分则的具体罪名来进行真正复合罪过形式的研究。     

When Due Process Is of No Consequence: Moral Mandates and Presumed Defendant Guilt or Innocence

Most current theories of justice are focused on how social identity, instrumental concerns, or both shape how people decide whether something is fair or unfair. A neglected consideration is that people may also be concerned with justice because they strive to be authentic moral beings by acting on the basis of values closely tied to their personal identity. We posited that self-expressive moral positions or stands (moral mandates) are important determinants of how people reason about fairness. Supporting this notion, we found that (a) people see some trial outcomes in morally mandated terms, e.g., that the guilty must be convicted and punished, and the innocent must not; (b) convicting a defendant believed to be innocent or acquitting a defendant believed to be guilty were seen as unfair, regardless of whether the verdict was achieved by a fair or unfair investigation and trial (Study 1); and (c) a guilty defendant's death was seen as equally fair, and an innocent defendant's death was equally unfair, if it was achieved by a trial that led to the death penalty or by vigilantism (Study 2). Procedural propriety only mattered when defendant guilt was ambiguous.     

Limitations on the ability to negotiate justice: attorney perspectives on guilt,innocence, and legal advice in the current plea system

In the American criminal justice system the vast majority of criminal convictions occur as the result of guilty pleas, often made as a result of plea bargains, rather than jury trials. The incentives offered in exchange for guilty pleas mean that both innocent and guilty defendants plead guilty. We investigate the role of attorneys in this context, through interviews with criminal defense attorneys. We examine defense attorney perspectives on the extent to which innocent defendants are (and should be) pleading guilty in the current legal framework and investigate their views of their own role in this complex system. We also use a hypothetical case to probe the ways in which defense attorneys consider guilt or innocence when providing advice on pleas. Results indicate that attorney advice is influenced by guilt or innocence, but also that attorneys are limited in the extent to which they can negotiate justice for their clients in a system in which uncertainty and large discrepancies between outcomes of guilty pleas and conviction at trial can make it a sensible option to plead guilty even when innocent. Results also suggest conflicting opinions over the role of the attorney in the plea-bargaining process.     

美国死刑案件有罪答辩自愿性探微

在美国,享有不被强迫自证其罪的权利是保障被告人认罪自愿性的基础。在死刑案件中,被告人作有罪答辩时得到了有效而合格的律师帮助、具有与其律师交流的能力、在知晓指控的性质和答辩有罪的后果是被告人自愿认罪的标志,选择陪审团审判而可能被判处死刑并不是强迫被告人认罪的必然因素。     

What is so special about [free] speech?

Legal and political philosophers (e.g., Scanlon, Schauser, etc.) typically regard speech as special in the sense that conduct that causes harm should be less subject to regulation if it involves speech than if it does not. Though speech is special in legal analysis, I argue that it should not be given comparable status in moral theory. I maintain that most limitations on state authority enacted on behalf of a moral principle of freedom of speech can be retained without supposing that speech is entitled to a degree of protection not afforded to (most) other forms of conduct. My argument questions some standard assumptions made by philosophers about the relationship between moral and legal principles.     

Public Reason and the Need to Identify State-Relevant Desert

Plausible retributivist justifications for punishment assert that the commission of a moral wrong creates a pro tanto reason to punish the person who committed it. Yet there are good case-based and theoretical reasons to believe that not all moral wrongs are the proper subjects of criminal law or that they are within the proper domain of the state. This article provides these reasons, which suggest that a plausible retributivist justification for punishment must make distinctions between state-relevant and non-state-relevant moral wrongs and (consequently) state-relevant and non-state-relevant desert. The article makes the case for Rawlsian public reason as a plausible method for making these distinctions.     

Behavioral Confirmation in the Interrogation Room: On the Dangers of Presuming Guilt

A two-phased experiment tested the hypothesis that the presumption of guilt that underlies police interrogations activates a process of behavioral confirmation. In Phase I, 52 suspects guilty or innocent of a mock theft were questioned by 52 interrogators led to believe that most suspects were guilty or innocent. Interrogators armed with guilty as opposed to innocent expectations selected more guilt-presumptive questions, used more interrogation techniques, judged the suspect to be guilty, and exerted more pressure to get a confession—particularly when paired with innocent suspects. In Phase II, neutral observers listened to audiotapes of the suspect, interrogator, or both. They perceived suspects in the guilty expectations condition as more defensive—and as somewhat more guilty. Results indicate that a presumption of guilt sets in motion a process of behavioral confirmation by which expectations influence the interrogator's behavior, the suspect's behavior, and ultimately the judgments of neutral observers.     

Social Pressure Mediates the Negative Impact of Guilt on Fair Allocation in Multi-Party Interactions

Previous research documents the negative effect of guilt on allocation behaviors in three-party dictator games. In these studies, guilty dictators gave more resources to their victims but fewer to third parties. We test whether this allocation behavior reflects greater social pressure from the victim in comparison to a third party (Experiment 1), and whether this pressure is reduced if a guilty dictator must take away resources as opposed to giving resources to the two players (Experiment 2). In two experiments, participants distributed 200 tokens in a three-party dictator game after an experimental manipulation of guilt in which participants learned they caused or did not cause their partner to lose a potential reward. In Experiment 1, dictators randomly assigned to the guilty condition reported more social pressure from the victims. Social pressure differences mediated the relationship between the experimental manipulation of guilt and the distribution of tokens between the dictator’s previous partner and another player. In Experiment 2, guilty dictators randomly assigned to take resources from the other two players reported more social pressure from the new player, and distributed the tokens more fairly between their previous partner and the new player in comparison to guilty dictators required to give resources to the other two players. Participants’ allocation behavior reflects social pressure from victims (created by feelings of guilt) and third parties (which depends upon whether game outcomes for other players are framed as rewards or costs).

     

The role of confirmation bias in suspect interviews: A systematic evaluation

Purpose. The three studies presented in this paper systematically examined the effect of expectations of guilt on interviewer questioning style, confession, denial rates, and suspects' verbal behaviour during interview. Method. Undergraduate students were recruited to participate in the three studies. In Study 1, 61 participants formulated questions that they wanted to ask a suspect to determine whether or not they cheated on a task. Prior to formulating their questions, participants were led to believe that the suspect was likely to be guilty or innocent. In Study 2, 45 ‘innocent’ and ‘guilty’ participants were accused of cheating on a task and were interviewed with either guilt‐presumptive questions or neutral questions. In the final study, 58 participants listened to a selection of audiotaped interviews from Study 2. They then rated various aspects of the suspects' verbal behaviour. Results. As hypothesized expectations of guilt resulted in the formulation of more guilt‐presumptive questions even when participants were free to generate their own questions (Study 1). A significant association was found between suspect guilt/innocence and whether they confessed or denied, although there was no association between questioning style and confession or denial rates (Study 2). However, as expected, ratings of independent observers who listened to tape recordings of the suspect interviews indicated an influence of questioning style on the suspects' verbal behaviour whereby a self‐fulfilling prophecy effect occurred (Study 3). Conclusions. These results indicate that expectations of guilt can indeed have an effect on questioning style and that this in‐turn can lead to a self‐fulfilling prophecy effect.     

Implicit theories of criminal responsibility

Three questions relevant to insanity decisions were examined: (a) What informational cues are weighed most heavily in the attribution of criminal responsibility? (b) How do verdict forms influence these attributions? And (c) How do individuals' beliefs about insanity and responsibility influence decision making? Undergraduate subjects (n=181) responded to vignettes portraying an act by a mentally disordered defendant. Psychiatric jargon was avoided, so that attributions were not a function of diagnostic terminology. It was found that, under the traditional scheme of not guilty by reason of insanity (NGRI) vs. guilty, level of mental disorder (schizophrenia vs. personality disorder) was the primary determinant of insanity decisions. Also, insanity judgments were more likely to be made for acts performed without planful intentionality. Under the alternative scheme of NGRI vs. guilty but mentally ill (GBMI) vs. guilty, mental disorder still controlled NGRI verdicts; a bizarre act increased the likelihood of a GBMI over a guilty verdict; and the GBMI verdict option reduced markedly the proportion of psychotic defendants found NGRI and the proportion of personality disordered defendants found guilty. There were no significant differences between diagnostic groups in the likelihood of being found GBMI. Most subjects preferred to utilize the GBMI option as a compromise verdict even in the face of very severe mental illness. Attitudinal data revealed considerable variation in agreement with the classic moral logic of the insanity defense and accounted for a significant amount of the variance in insanity decisions. The implications for both social policy and future research are discussed.     

Politics in a State of Nature

Aristotle thought we are by nature political animals, but the state‐of‐nature tradition sees political society not as natural but as an artifice. For this tradition, political society can usefully be conceived as emerging from a pre‐political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state's just powers and prerogatives. A state‐of‐nature theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state's resulting normative endowment, which includes a (purported) moral power to impose duties of obedience. State‐of‐nature theories disagree about the NNE. For Locke, it included a “natural executive right” to punish wrongdoing. Recent social scientific findings suggest a quite different NNE. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers. The social science can support two claims. One, is that the NNE is (as Aristotle held) already political. The other is that political authority can be re‐conceived as a matter of standing—that is, as the state's unique moral permission coercively to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience.     

认罪认罚阶梯式从宽量刑精准化研究——兼评《关于适用认罪认罚从宽制度的指导意见》

《关于适用认罪认罚从宽制度的指导意见》细化了认罪认罚的从宽规则,肯定了阶梯式从宽量刑的指导思想,但其在从宽量刑精细化方面仍有不足。认罪认罚客观上存在一个与教育改善难易度和办案价值量相对应的阶梯式等级体系。在设定认罪认罚阶梯式从宽量刑幅度时,应当以教育改善的难易度、办案价值量两个因素为主线。根据教育改善难易度的大小,可以将认罪认罚划分为自首型、坦白型、功利型三个类别;根据办案价值量的大小,可以将认罪认罚划分为三个价值级别。根据认罪认罚的"三个类别"和"三个级别"之间的组合,认罪认罚形成九梯度的等级体系。九梯度的等级体系,最高从宽幅度可以减少基准刑的70%至免除处罚,最低从宽幅度可以减少基准刑的5%以下。     

企业合规本土化中的“双不起诉”

"放过企业、严惩个人"是欧美国家企业合规不起诉的理念,但在我国企业合规改革试点的典型案例中,既放过企业又放过个人的"双不起诉"现象出现了,这引发了对企业合规不起诉公正性和正当性的质疑。"双不起诉"出现的主要原因在于,我国未严格区分企业刑事责任和个人刑事责任,未厘清企业合规不起诉制度与认罪认罚从宽制度的关系。随着企业合规改革试点的持续推进,有必要对"双不起诉"引发的质疑作出回应,区分企业和个人的刑事责任,对小微企业的合规不起诉给予足够的本土关怀,厘清企业合规不起诉制度与认罪认罚从宽制度的关系,推动我国企业合规本土化深入发展。     

The role of coherence in legal reasoning

Many contemporary philosophers of law agree that a necessary condition for a decision to be legally justified, even in a hard case, is that it coheres with established law. Some, namely Sartorius and Dworkin, have gone beyond that relatively uncontroversial claim and described the role of coherence in legal justification as analogous to its role in moral and scientific justification, on contemporary theories. In this, I argue, they are mistaken. Specifically, coherence in legal justification is sometimes specific to a branch of law, and there is nothing isomorphic to this in the models of moral and scientific justification. Although Dworkin and Sartorius rely on the concept of coherence, they do not explicate it. In the course of examining their views, this essay offers a partial analysis of coherence on their models. Finally, two canons of relevance, governing when global coherence considerations are appropriate to legal justification, are presented.     

The question of the constitutional case against suicide: an historiographical and originalist inquiry into the degree to which the theory of the inalienable right to life and liberty is enforced by the Thirteenth Amendment

This article completes a study that the author foreshadowed in his previous articles. The Western moral theory that defends the inalienable right to life and liberty--and that therefore forbids all forms of suicide and slavery--is now well known to the author's readers. What is not well known is an answer to the question of whether this theory, in its totality, was part of the original intent of the Thirteenth Amendment to the Constitution of the United States. The theory of the inalienable right to life and liberty was supported by many political philosophers in the seventeenth and eighteenth centuries. Those philosophers and their theory did shape a good deal of the thought of the men who made the Thirteenth Amendment a part of the Constitution. The anti-suicide implication of the theory, however, was not present in the minds of the framers and ratifiers of the Thirteenth Amendment, and therefore was not part of their intent.