Policy Implications

This last chapter, Chapter 8, looks at larger issues of economic sanctions. Reitz and Klingele, the reporters of the Model Penal Code argued that economic sanctions are unprincipled (they violate legal standards and discriminate against the poor), unsuccessful (they are generally unpaid and, as presently constituted, do not meet the purposes of sentencing), and are unending (local and state governments are continuing to impose economic sanctions and other legal financial obligations in order to meet budgetary needs). Also, in the final chapter the author discusses how the existing research can be used to inform policy, particularly regarding questions of whether there should be different types of economic sanctions, what those types should be, and what amounts of economic sanctions should be imposed. These policy arguments are based on the assumption that the law and courts should be concerned about victims, offenders, and the community.

Introduction and Overview

In the past 30 years, economic sanctions following criminal convictions have been more frequently imposed. This trend toward increasing the use of economic sanctions is likely to continue because of increased costs, increased retribution, a desire for intermediate punishment, and concern for the losses incurred by victims and their families. The first chapter provides a brief historical introduction to the concept of economic sanctions and an overview of the current status of economic sanctions in the United States. An overview of the advantages and disadvantages of economic sanctions, from both economists and lawyers, follows. There is then a brief discussion of the purposes of sentencing and reference to the economic sanctions section of the Model Penal Code: Sentencing The chapter ends with an overview of the book.

The 1950s and 1960s

Chapter 2 explores the early gay rights movement in the 1950s and 1960s during the Red Scare, which was also the period of greatest repression of gay people in U.S. history. The struggles of the tiny homophile movements such as the Daughters of Bilitis and the Mattachine Society are described. U.S. popular culture was relentlessly hostile to homosexuality during this period. Hollywood had an official code requiring that gay characters be shown only in a negative light. At the same time, the American Law Institute published a model penal code that recommended the decriminalization of sodomy.

Rationales: rejected, imagined and real – provocation, loss of control and extreme mental or emotional disturbance

What makes intentional killing under provocation less reprehensible than murder? The answer to this question determines the rationale for the law; and the choice of the primary rationale – justificatory or excusatory – determines the scope and fundamental features of the partial defence.In this article, I attempt to parse through two reforms – one promulgated by the Model Penal Code 1980 (MPC), the other by the Law Commission for England and Wales – and compare their versions of the defence both to each other and to the ‘loss of self-control’ defence of the Coroners and Justice Act 2009 in the hope of determining and appraising the governing rationales for each version of the defence. I conclude that the largely justificatory defence of provocation developed by the Law Commission (and to a lesser degree the ‘loss of self-control’ defence) is legally and morally preferable to the largely excusatory defence proposed by the MPC.

Keep Law Alive

An account of the author’s recent book, Keep Law Alive, including: an assessment of the dangers which threaten law and the democracy it depends upon; an analysis of the ethically and intellectually praiseworthy methods and traditions law once enjoyed, using as examples the Model Penal Code, a pair of judicial opinions by Justice Holmes, and an essay on affirmative action; the elaboration of a way of thinking about law not as rules or policy or theory but as an inherently unstable but crucially important structure of thought and expression; and finally some attention to the question, how we might resist the corruption of law and, failing that, and using Augustine as an example, how we might live with its loss.

The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions

The concept of consent is ubiquitous in the West. It is the foundation of its construction of meaning for sovereignty (and political legitimacy), and for personal autonomy (and human dignity). Ubiquity, however, has come with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus faced morality of political correctness. It takes as its starting and end point the idea that free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented. The exploration is framed around the recent arguments in the American Law institute’s Model Penal Code Project around the meaning of consent in sexual relations. The essay first situates the problematique of consent—as action and object that incarnates power relations and the boundaries of the taboo. It then illustrates the way that semiotic meaning making produces a political correctness that produces paradox by critically chronicling the meaning of consent respecting sexual intimacy in criminal law. It enhances sexual liberation by placing it within a cage of limitations that ultimately transfers the power over consent form the individual to the state. That meaning making suggests the way that consent as an act, and as a state of being, is transposed to the broader context of political economic relations.

Incompetence, Psychopathy, and Fair Opportunity

Fair opportunity supports a modified version of the Model Penal Code insanity test, against the narrower M’Naghten test. The Andrea Yates case is introduced as a paradigmatic insanity defense. Recent arguments that psychopaths should be excused because their psychological deficits prevent them from developing cognitive competence about moral norms are considered and rejected. Moral blindspots involving selective discrimination raise questions about selective incompetence. In general, the selective nature of these blindspots implies that agents with blindspots have the capacity to correct their moral ignorance and so should not be excused.

Battered Persons, Provocation, and Fair Opportunity

Different battered person defenses are distinguished from each other and shown not to depend on Battered Woman’s Syndrome. Common law and Model Penal Code conceptions of provocation are distinguished. The Model Penal Code conception is shown to be regressive. A worry is raised that there is a double standard at work in the criminal law’s treatment of intimate partner violence involving men and women. A principled explanation is offered about when provocation justifies and when it excuses. Doubts are expressed about extending a provocation defense to those with unreasonably volatile sensibilities.

Complicity in the common law system: General characteristics

Complicity in the common law system has been subject of different practices in different countries for many years. It is unlike the practice in the majority of continental criminal justice systems. However, the court practice and principles established over time in certain countries have had greater effects than in some other countries using the same system. English common law practice is an example. It is the common law system with the strongest influence. Its practice regarding complicity was established a long time ago in 1861 Accessories and Abbettors Act that was the main law regulating this issue for over a hundred years. Besides very well-established actus rea elements, the main mens rea condition for complicity was a perpetrator's purpose or knowledge of the main criminal act. During 1985, the complicity concept was changed with the final judgment in the case "R v Jogee (Appellant) and Ruddock (Appellant) v The Queen (Respondent) (Jamaica)." The point of this reform was the "joint criminal enterprise" concept that was based on the "foreseeability standard" that made an accomplice responsible even for crime acts that were outside the "common plan or the purpose". After 30 years of implementation, the case of Privy Council Chang Wing-Siu v The Queen reset the complicity doctrine again and got it back to its traditional principles claiming "foreseeability standard" unconstitutional. Due to the importance of the common law system in Great Britain for other countries applying the same system, some of them, including Australia and Jordan, accepted the same complicity principles as Great Britain. Both of the mentioned systems adopted the "joint criminal enterprise" concept, but they developed it within their national criminal laws demanding extra responsibility claims for the accomplice. Unlike them, the US common law is characterized by other elements. Among them, the main ones are its inconsistency in terms of different practices at the state and at the federal level, as well as the lack of codification relating to many criminal law principles, including the complicity doctrine itself. These issues and problems have been a subject of interest of many scholars and practitioners in the common law system. The common denominator of their remarks regarding the problem is the need for a comprehensive reform of the current criminal law regulations and practices. Model Penal Code was a partially successful attempt of such needs but with limited effects. Taking in consideration all problems that exist regarding the complicity doctrine in the common law system, it seems further reforms and codifications of the complicity doctrine are the best way out of the current confusion where this doctrine seems to be stuck.