Foreword: The Morality of the Criminal Law: Rights of the Accused

Bazelon, David L.

doi:10.2307/1143229

Cited by 8 publications

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“…This can be seen in scholarly accounts as well. Although some have proposed that extreme social deprivation should serve as grounds for mitigation (see, for example, Bazelon, 1976), others have worried that this approach would complicate consideration of objective standards for culpability and punishment, and it might even erode the very notion of criminal responsibility upon which the entire criminal justice system is based (see Morse, 1976). 6.…”

Section: Discussionmentioning

confidence: 99%

Who Deserves Diversion? A Theoretical Critique of Mitigation, Consequentialism, and the Juvenile Court

Zane

Mears

2023

Journal of Contemporary Criminal Justice

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The juvenile court was created as a means of diverting youth from the criminal justice system, and, in turn, diversion within the juvenile court has been used for a variety of purposes. This paper argues that an understanding of diversion, and its implications, requires distinguishing deservingness and consequentialism. Analysis of the former goal entails a focus on mitigation and draws attention to a critical gap in scholarship—namely, how do juvenile courts decide which youth deserve diversion? While risk and needs assessments likely play a role, so, too, may mitigation assessments about which youth are more deserving of interventions that may impose less punishment and more rehabilitation. In advancing this argument, we discuss ways in which a focus on diversion, and on mitigation, help to illuminate fundamental tensions in juvenile justice. We discuss, too, ways in which this focus can help to advance research and policy.

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Section: Discussionmentioning

confidence: 99%

Who Deserves Diversion? A Theoretical Critique of Mitigation, Consequentialism, and the Juvenile Court

Zane

Mears

2023

Journal of Contemporary Criminal Justice

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“…However, this test was later criticized for its heavy focus on the medical model of insanity. Many critics were of the view that the ALI standard gave mental health professionals too much control over the determination of legal insanity (Bazelon, 1976). The volitional component of the ALI rule was more heavily criticized than its appreciation component.…”

Section: Development Of Insanity Defense In the Usamentioning

confidence: 99%

Evolution of Modern Insanity Defense: A Critical Review

2023

AHSS

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The defense of insanity, which is an excuse defense against the criminal liability of a person, went through different phases of evolution before coming to its modern form. During different phases of history, the insanity, and the insanity defense were interpreted differently. The objective of this study is to review the evolution of the defense of insanity employing the doctrinal legal analysis approach. The findings of this review suggest that a critical phase in the evolution of the insanity defense started with the introduction of McNaughton rules. Moreover, different standards of insanity defense such as the Irresistible Impulse Rule, the New Hampshire Product Test, the Durham Rule, the ALI rule, etc. were also introduced. There is still a need for a better standard of insanity defense. The defense of insanity is still evolving and must be studied by adopting multidisciplinary approaches.

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“…A common argument for this conclusion appeals precisely to the state's vicarious responsibility for criminal conduct, in virtue of its failure to address certain forms of structural and severe historical and contemporary injustice which are known to be associated with heightened risk of individual offending. Criminal justice theorists have long viewed 'rotten social background' as harboring the potential to reduce the degree of blameworthiness and justify mitigation in relation to sentencing, in so far as this background bears on the question of whether the offender had a reasonable opportunity to conform their conduct to the law-or rather faced circumstances which, through no fault of their own, significantly impaired their ability to do so (Bazelon 1976;Delgado 1985; Morse 2000Morse , 2011Robinson 2011). Given that these circumstances-which include, e.g., poverty, oppression, and genuine lack of educational and employment opportunities-are not only unjust but also well-established to carry this risk, a state which systematically fails to rectify them is arguably implicated in-and so vicariously responsible for-any resulting misconduct committed by those who are victims of these circumstances (Duff 2001;Tadros 2009;Watson 2015).…”

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confidence: 99%

Why Standing to Blame May Be Lost but Authority to Hold Accountable Retained: Criminal Law as a Regulative Public Institution

Lacey

Pickard

2021

The Monist

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Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the criminal law cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority.

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Foreword: The Morality of the Criminal Law: Rights of the Accused

Cited by 8 publications

References 0 publications

Who Deserves Diversion? A Theoretical Critique of Mitigation, Consequentialism, and the Juvenile Court

Who Deserves Diversion? A Theoretical Critique of Mitigation, Consequentialism, and the Juvenile Court

Evolution of Modern Insanity Defense: A Critical Review

Why Standing to Blame May Be Lost but Authority to Hold Accountable Retained: Criminal Law as a Regulative Public Institution

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