Showing papers in "Journal of Criminal Law & Criminology in 1990"

Rational Choice, Deterrence, and Social Learning Theory in Criminology: The Path Not Taken*

Abstract: "Rational choice" theory, which is derived mainly from the expected utility model in economics, has become a "hot" topic in criminology, sociology, political science, and law. The utility premise of rational choice theory has an obvious affinity for the deterrence doctrine in criminology. Deterrence and the utilitarian view of rational human nature have been with us since at least the eighteenth century. Although the link between deterrence and rational choice has been made in the literature, proponents of the rational choice perspective purport to offer much more than just an expansion of the deterrence theory. Indeed, the rational choice models in the literature go well beyond this to paint a picture of partial rationality with various situational and cognitive constraints and deterministic notions of causes and motivations. Coleman, who is the chief proponent of rational choice models in sociology sees serious "deficiencies" in directly applying the economic model of rationality to "real players," even in very restricted social situations.

Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders

Abstract: The selection of jurisdiction for adjudicating juvenile crime today is one of the most controversial debates in crime control policy, reflecting differences in assumptions about the causes of crime and philosophies of jurisprudence and punishment. For adolescent offenders, especially violent youth whose behaviors may pose particular social danger, critics view the traditional goals of the juvenile court and the 'best interests of the child" standard as being at odds with public concerns for retribution and incapacitation of criminals. The choice between jurisdictions is a choice between the nominally rehabilitative dispositions of the juvenile court and the explicitly punitive dispositions of the criminal courts.' The choice reflects differences between sentencing policies that assign primary importance to the individual and those that accord greater significance to the seriousness of the offense committed and the goal of proportional punishment. _ Critics of the juvenile court's rehabilitative policies suggest that the court's sanctions for violent crimes are not only inappropriate and disproportionate for the seriousness of the crimes, but also inef-

The Competence of Criminal Defendants with Mental Retardation to Participate in Their Own Defense

Abstract: seem both well-settled and well-suited to promote fairness in the criminal process. As the Supreme Court noted in 1975, "it has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial."2 Whenever a defense attorney has a good faith doubt regarding the competence of his or her client, the attorney is obligated both to seek a clinical evaluation of the issue and to bring his or her doubts to judicial

The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea

Abstract: The criminal-law doctrine of deliberate ignorance, or "willful blindness," is an area that raises both legal and philosophical issues concerning the level of subjective conviction and objective evidence that constitutes knowledge. Professor Glanville Williams described willful blindness in the following terms:A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. A common example is the traveler who accepts a large sum of money from a stranger to transport a suitcase but chooses not to examine the contents for fear of discovering contraband. This tactic appears to preserve the defense of ignorance when knowledge is an element of an offense. By refraining from inquiry or investigation, most defendants can deny actual knowledge of the pertinent facts and presumably escape conviction. Deeming deliberate ignorance to be a culpable attempt to cheat justice, the federal courts have sought to eliminate the defense by expanding the definition of knowledge. Traditionally, knowledge requires an actual awareness of the existence of a particular fact. The federal courts have rejected his positive-knowledge standard in favor of the Model Penal Code approach: knowledge of a fact is established "if a person is aware of a high probability of its existence, unless he actually believes that it does not exist." Thus, the prosecution need only show that the defendant recognized the likelihood of a particular fact. This approach reaches many defendants who would otherwise avoid conviction simply by ignoring their suspicions.The central legal question raised by this approach is whether a conviction based on a deliberate ignorance, or "ostrich," jury instruction is compatible with the constitutional requirement that the prosecution prove each element of the crime, including knowledge, beyond a reasonable doubt. The corresponding philosophical question is whether knowledge of a fact can exist in the absence ofsubjective certainty or objective confirmation. These questions implicate both the relationship between the individual and the state and the relationship between the judiciary and the legislature. If neither question can be answered in the affirmative, then a conviction that is obtained would violate the defendant's constitutional rights because the state had not met its burden of proving knowledge. Furthermore, if the judiciary substitutes a lesser mental state for statutorily prescribed knowledge, then it encroaches on the legislative prerogative of defining criminal conduct. This Article explores the deliberate-ignorance doctrine and recognizes that, through the loophole provided by the defense, the defendant may escape conviction by maintaining his or her ignorance despite indications that he or she is involved in criminal activity. The Article concludes, however, that the high-probability/unless definitional approach of the Model Penal Code is an unacceptable solution.

The Future of Juvenile Justice: Is it time to Abolish the System

Abstract: Initially, it is necessary to define what I mean by the juvenile justice system. I have in mind only that aspect of the jurisdiction of a juvenile court that includes criminal conduct and certain noncriminal conduct. Modern juvenile statutes normally label the former "delinquency" and the latter-often called status offenses-by various names, such as "Persons (or Children, or Juveniles, or Minors) in Need of Supervision." Usually included in the latter are running away from home, truancy, and (less often) incorrigibility or ungovernability. I exclude from consideration other elements of the possible jurisdiction of a juvenile court, such as adoption, termination of parental rights, child abuse and neglect, paternity, custody, and support. I include within my definition of the juvenile justice system not only court proceedings but the entire legal process, beginning with law enforcement, through court intake and detention, informal and formal probation, and ending with the juvenile correctional process. It is also necessary to state what I mean by abolition. I have in mind abolishing the juvenile justice system as a system separate from the criminal justice system. The result of abolition would be a merger of the two systems or, perhaps more accurately, an acquisition of the juvenile justice system by the larger criminal justice system. Abolition would not mean that all distinctions based on age would be obliterated; there would still be differences in how the

Mistake and Impossibility, Law and Fact, and Culpability: A Speculative Essay

Abstract: I. First Thoughts: An Idealized Model of Mistake and Impossibili ty . A. Distinguishing Factual Mistakes, Legal Mistakes Concerning Governing Law, and Legal Mistakes Concerning an Offense Element . 1. Six Examples of the Concepts . 2. Classic Chestnuts of Impossibility . 3. Two Potential Criticisms . a. Is the FactlLaw Distinction Problematic? ... . b. Is the Traditional View of "Legal" I 'b'l' P .;> mpossl 1 Ity ersuaslve. . . B. A Refined View: Considering the Culpability of the Mistake : ..... . 1. Completed Crimes and Exculpation . 2. Attempts and Inculpation . 3. Circumstances versus Results . 4. Inherently "Unreasonable" Attempts . 5. Refined Chart. . II. Second Thoughts . A. Practical Objections . B. Legal Mistake About an Offense Element Reexamined . 1. Legal MistakeIE or Legal Mistake/GL? A Problematic Distinction . 2. Legal Mistake/E: A Suggested Approach ...... .

Crime and Punishment in Renaissance Florence

Abstract: This paper centers attention on available records that best reflect the sentiments and behavioral manifestations of those sentiments concerned with the treatment of criminal offenders in Florence, Italy, during the fourteenth and fifteenth centuries. Florence is regarded as the birthplace of the Renaissance spirit, and the history of punishment there in this period has basic relevance to the development of methods dealing with persons who committed crimes. Many of the historical details which this study contains are reasonably well known, others are new or newly uncovered. The sociological implications of these details are less widely recognized. The view that crime and punishment of any period are not divorced from their social and cultural context is commonplace, but there are few empirical studies of this relationship. In general terms, this paper is an empirical examination of the genesis and development of some of the cultural values which underlie the social reaction to crime during the Early Renaissance in Florence.ii

A Great Writ while It Lasted

Abstract: This is a brief essay on the emergence of an esoteric legal doctrine, or, more precisely, on the confluence of several legal doctrines. It is also a brief snapshot of how the Supreme Court hopes, or believes, that some of its esoteric doctrines of criminal procedure and jurisdiction can play a role in the amorphous social campaign to fight violent crime in America. The essential point is this: in a pair of decisions handed down this Term,' the Supreme Court substantially eviscerated federal habeas corpus jurisdiction as an instrument for constitutional law. And though we know no motives for Supreme Court cases other than those announced in the decisions, one can speculate that the Court was simply frustrated with the inadequacy of the execution rate of America's death row inmates.

The Pressures and Prospects for Change

Abstract: The last decades of centuries are doubly significant in this country. The decades of the "90s" mark, on the one hand, thefin de sie'cle, thus stimulating reflection on the past, and on the other hand, mark the beginning of another century of national existence, thus stimulating speculation about the future. Always on the lookout for reasons to generate interesting scholarship, the editors of the Journal of Criminal Law and Criminology found the confluence of these two causes of speculation irresistible, and used them as the occasion to solicit essays from a distinguished panel of commentators on the criminal process. The charge given to the essayists was to speculate about areas of interest to them, free from the normal constraints of writing for law reviews. The result is the very interesting collection of essays in this Symposium. The papers range over a variety of topics integral to the criminal process. Professor Uviller focuses his creative energies on a highly specific question-in his words the "possible constitutional impediments to the admission of evidence of the inculpatory implications of a suspect's refusal to allow a search of constitutionally shielded aspects of his person, or the places and things that enjoy the shelter of the fourth amendment"-and demonstrates how such