Author Archives: editorscjtblog

Community sentences on a continuum with imprisonment: Electronic monitoring and unpaid work requirements

by Virginia Mantouvalou and Hadassa Noorda

In this post, we argue that electronic monitoring and unpaid work as part of community sentences should be seen as being on the same continuum as imprisonment, and that they have key features that can make them as restrictive as imprisonment. Therefore, safeguards that apply to imprisoned people should also be extended to those serving community sentences. These safeguards can make community sentences compatible with values that criminal justice should embrace.

Culpability, Rational Capacity, and Psychosis

by Claire Hogg

The dominant way of understanding the exculpatory pull of psychotic illness in terms of rational incapacity. Broadly, the argument is that if D was experiencing psychosis at the time of acting, then D did not have the rational capacities that are a precondition for criminal responsibility. In this post I argue that this analysis cannot always tell the full story. I illustrate this by discussing cases involving persons who believed themselves to be doing the morally necessary thing in the circumstances that they deludedly believed to exist.

The Authority to Punish in a Non-Ideal World

by Hend Hanafy

One of the traditional ways of explaining how the state’s authority to punish can be reconciled with individual autonomy, is by reference to democracy as a mediating factor. But over half of the world’s population lives in non-democratic systems. So traditional penal theory, with its focus on retributive or consequential justifications for punishment, pays inadequate attention to the way in which political governance interacts with the authority to punish. In its political context, punishment is not only a response to criminal wrongdoing, or a solution to problems of mutual cooperation; it is also the crucial means for the powerful to impose the rules that control individuals’ lives. This is evident in authoritarian states where criminal law and punishment constitute the main tools of social and political control, backing the authority’s claims of dominance and ensuring the continuation of the autocrat in power. Or so I argue in this post.

Acts, Omissions, and Remark-able Criminal Conduct

by Mark Dsouza

In this post, I argue against distinguishing between Acts and Omissions in both, decisions about what conduct tokens to make the basis of new crimes, and the interpretation of the conduct elements of existing criminal offences. Instead, I argue, that the criminal law is interested in voluntary conduct that belies a contextually salient expectation, whether that conduct be commissive, or omissive. Thinking of the conduct element of the actus reus of a criminal offence this way helps us simplify our analysis of offences, and limit the scope of seemingly overbroad offences.

Constitutive luck, Criminality, and Distributive Justice

by Dr Ambrose Y.K. Lee

In this post, I argue that once we properly recognize the presence of luck in one being the kind of person that one is, then we should see criminality as a proper object of concern for distributive justice, just like natural disadvantages or contingent social circumstances in the economic and political domains. This implies that the criminal justice system has a responsibility to try and eliminate the disadvantage of criminality by (a) tackling the causes of criminality and (b) promoting rehabilitation and reintegration.

Retributivism and Value Pluralism

by Re’em Segev and Ofer Malcai

In this post, we argue that despite the initial plausibility of this common view, one cannot be both, a retributivist, and a value pluralist, in one’s theory of criminal punishment. We argue that the value of desert is unique in that it dispels other values, such that they do not count even pro tanto. Thus other values cannot be balanced against desert – desert simply displaces those values so that they do not count.

Liability and Immigration Enforcement

by Mollie Gerver

In this post, I argue that since states often inflict serious harm when enforcing their immigration laws, we must ask when immigration enforcement is ethically justified. I argue for using the moral principle of liability to answer this question in respect of individual instances of immigration enforcement. Given that the criminal law has reason to track morality, when enforcement is inconsistent with the principle of liability, I argue that the government has at least one reason to discontinue this enforcement.

Can You Know the Unknown?

by Alexander Greenberg

In this post, I consider a tempting argument against criminal negligence liability, which runs: ‘criminal negligence liability is inappropriate because we cannot take precautions against risks of which we are unaware.’ I argue that it rests on a crucial ambiguity, and that clearing it up reveals this argument to be flawed. While not all opposition to criminal negligence rests on this ambiguity, some does, and so dispelling it helps us identify bad arguments against criminal negligence.

Part 3: The threads of reasoning and blame (and what it means for criminal culpability)

by Mark Dsouza

In this post, I distinguish between two ‘threads’ of our reasoning process, viz. norm-reasoning and functional-reasoning, and consider how blaming evaluations relating to these two threads ought to be made. I will argue that the criminal law ought to blame only for poor norm-reasoning as reflected in our choices, and show that this proposition does not unduly narrow the reach of the criminal law.

Safety from False Convictions

by Boaz Sangero

This post suggests ways to reduce the risk of false convictions by implementing an incident-reporting duty and applying insights and experience from other spheres of life, in which accidents are readily discernible. This approach overcomes the obstacle posed by the fact that false convictions are generally indiscernible from appropriate convictions, and also avoids the relatively high costs of learning how to improve the system through the experience of things going wrong.

Fair Labelling and the Temporal Stages of Criminal Law

by Matt Gibson

I argue that fair labelling is important not just when assigning labels to people at the end of a criminal trial, but throughout the process of the criminal trial, right from criminalisation, through investigation, and until conviction. It plays different roles and speaks to different audiences at each stage of the criminal process.

Part 2: A matter of perspective (in Conduct Rules)

by Mark Dsouza

In this post, I build on my previous post to argue that imperative, liberty-restricting conduct rules (such as those you might find in offence definitions) should be framed by reference to the objective facts rather than by reference to beliefs about facts. I explain that since the mere circumstance of being in default of a conduct rule need not necessarily lead to a blaming judgement, we need not worry about being blamed for violating guidance that we did not, and could not, know was applicable.

Error-Avoidability and the Resolution of Criminal Conflicts

by Liat Levanon

In this short post I take the first step in demonstrating that error-avoidability (which I have argued is a condition for legal belief) has practical value. I argue that error-avoidability can facilitate an acceptable resolution of a criminal conflict by managing the risk of error.

Public Justifiability and the Puzzle of Mala Prohibita

by Alexander Sarch

Mala prohibita offenses are acts which have been deemed crimes even though they are not morally wrong in themselves. But because a criminal conviction conveys society’s strongest public condemnation, the traditional view is that we cannot properly criminalize a type of conduct unless it is morally wrong. So how do we make sense of mala prohibita offenses? Andrew Simester has recently offered one plausible answer, but I argue here that there’s a gap in Simester’s argument – and then I suggest one how we can close it.

The Unified Constitution of Action in Understanding Responsibility for ‘Omissions’

by Bebhinn Donnelly-Lazarov

This post defends the claim that human action is constituted by the unified exercise of mental and (at least sometimes) physical capacities. When human beings are responsible for their actions, they are responsible for actions so constituted; action does not assume some sort of different constitution in talk about responsibility.

Constitutional Constraints on Criminalization

by Miri Gur-Arye

While traditional limitations on criminalization derived either from Mill’s harm principle, or from the retributive theory of punishment, modern limitations derive from political theories of the criminal law. However, this modern move has not led to a thorough discussion of constitutional control over criminalization. Here, I explain why this is, suggest a theoretical basis for subjecting criminalization to constitutional control, and outline the implications of doing so.

Part 1: Could the ‘wrongness hypothesis’ be wrong?

by Mark Dsouza

In this post, I suggest that there is reason to doubt one of the foundational propositions that is often used to structure our understanding and classification of criminal law defences – what I call the ‘wrongness hypothesis’. The wrongness hypothesis is used in most theories of criminal defences to separate out the set of rationale-based defences into justifications and rationale-based excuses.

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