HANEY: MAKING LAW MODERN SEPTEMBER 14 CULPABILITY UNDER THE LAW • TWO THINGS MUST BE PROVEN FOR A PERSON TO BE GUILTY: 1. ACTUS REA: THE PERSON DID AN ILLEGAL ACT. FACTS OF THE CASE DETERMINE THIS. 2. MENS REA: THE PERSON HAD A CRIMINAL STATE OF MIND, THEY WEREN’T CONFUSED, MISTAKEN, ETC. • TWO PARTS OF A TRIAL: 1. GUILT PHASE AND 2. SENTENCING PHASE • GUILT IS CATEGORICAL: YOU ARE OR YOU ARE NOT GUILTY (MOSTLY). CIRCUMSTANCES DO NOT MATTER. • SENTENCING ASSIGNS THE AMOUNT OF BLAME OR MITIGATION – CIRCUMSTANCES OF THE CRIME MATTER. PURPOSE OF CRIMINAL JUSTICE IN AMERICA • ASSIGN BLAME FOR THE PURPOSE OF INFLICTING PUNISHMENT • PUNISH: THE DELIBERATE INFLICTION OF HARM FOR THE PURPOSE OF: 1. TO HAVE AN EFFECT ON THE PERSON 2. TO ASSERT THE LEGITIMACY AND POWER OF THE LAW 1. THE PUBLIC SEES THE LAW AS FAIR AND METING OUT JUST DESERTS 2. ESTABLISHES THAT THE LAW WAS SERIOUS, NOT JUST AN EMPTY STATEMENT • INCAPACITATE: WHEN YOU ARE LOCKED UP, YOU CAN’T COMMIT CRIMES (EXCEPT YOU CAN) • REHABILITATE: MOSTLY BASIC EDUCATION BUT INMATES HAVE A RIGHT TO TREATMENT – NOT SAYING GOOD TREATMENT, BUT TREATMENT. PUNISHMENT • ANIMAL STUDIES PROVE THAT PUNISHMENT WORKS GREAT! ALMOST ANY BEHAVIOR CAN BE EXTINGUISHED WITH PUNISHMENT • HOWEVER, PUNISHMENT EITHER WORKS OR IT DOES NOT WORK – MORE OR HARSHER PUNISHMENT DOES NOT PRODUCE INCREMENTALLY GREATER EXTINCTION. • INESCAPABLE AND RANDOM AVERSIVE EXPERIENCES INHIBITS AVOIDANCE LEARNING, EXTINCTION, AND LOTS OF OTHER LEARNING (E.G. LEARNED HELPLESSNESS). • NONETHELESS; INCREASING THE USE AND HARSHNESS OF PUNISHMENT IS POLITICALLY VERY POPULAR. HANEY: HISTORICAL ROOTS OF CULPABILITY • SOCIAL DARWINISM: PEOPLE HAVE A GENETIC ENDOWMENT THAT ALLOWS THEM TO SUCCEED OR FAIL; ENVIRONMENT PLAYS LITTLE ROLE AND PEOPLE DON’T CHANGE • PSYCHOLOGICAL INDIVIDUALISM: OUR ACTIONS ARE DETERMINED BY THE CHOICES WE MAKE • UNDERSTANDING RATIONAL CHOICE AND THE WILL THAT DRIVES IT ALLOWS US TO UNDERSTAND BEHAVIOR • NOTE: THIS DIFFERS FROM PSYCHOANALYTIC THEORY THAT HYPOTHESIZED THAT WE ARE DRIVEN BY UNCONSCIOUS DRIVES – BUT YOU CAN’T BUILD A LEGAL SYSTEM AROUND THAT • YOUR ACTIONS ARE YOUR OWN; ANY PUNISHMENT IS PUT ON YOU ALONE, ANY COLLATERAL HARM (I.E. TO YOUR FAMILY) IS YOUR FAULT AND THAT’S ALL THAT MATTERS HANEY: LEGAL CONCEPT OF THE PERSON • “NATURE AND RATIONAL PERSON” IS IN CONTROL OF THEIR OWN CONDUCT • BASIS FOR PUNISHMENT: IF THE PERSON IS CAPABLE OF MAKING A RATIONAL CHOICE TO NOT COMMIT CRIMES, THEY ALONE ARE RESPONSIBLE FOR THEIR CHOICE TO COMMIT CRIMES. • THE PERSON HAS AUTONOMOUS AGENCY AND IS NOT FUNDAMENTALLY SHAPED BY GROUP MEMBERSHIP OR AFFILIATION. • EVERYONE HAS EQUALLY AUTONOMOUS AGENCY – EVERYONE IS EQUALLY ABLE TO COMPLY WITH THE LAW AND ACCESS LEGAL RECOURSE TO ADDRESS PROBLEMS. • THE CONTEXT OF BEHAVIOR IS NOT RELEVANT BECAUSE NOT EVERYONE IN THAT CONTEXT DOES THE CRIME. HANEY: THE IMPORTANCE OF SOCIAL CONTEXT • BEHAVIORISTS: PREVIOUS EXPERIENCES SHAPE THE PERSON’S RESPONSES TO NEW STIMULI • PREVIOUS LEARNING ESTABLISHES ANTECEDENTS THAT LIMIT THE BEHAVIORAL OPTIONS OF THE INDIVIDUAL • PSYCHOLINGUIST: ACQUISITION OF LANGUAGE REQUIRES SOCIAL LEARNING = CULTURAL EFFECTS • VIOLENT, EMOTIONALLY ABUSIVE, NEGLECTFUL ENVIRONMENTS AFFECT HOW THE PERSON “HEARS” THEIR ENVIRONMENT • PERSONALITY: THE SITUATION PLAYS A POWERFUL AND OFTEN AUTOMATIC ROLE IN ACTIVATING AND REGULATING COMPLEX SOCIAL BEHAVIOR – MISCHEL • NEUROPSYCHOLOGY: EARLY EXPERIENCES IMPACT BRAIN STRUCTURES AND FUNCTIONING IN A WAY THAT DETERMINES LATER BEHAVIOR AND UNCONSCIOUS PROCESSES. LEARNING PROVIDES SHORTCUTS • WE CAN SAVE ENERGY AND STRESS BY READING THE ENVIRONMENT WITHIN THE FRAMEWORK OF PREVIOUS EXPERIENCES. • EXPERIENCES PROVIDE A FRAMEWORK FOR UNDERSTANDING RISKS. • EXPERIENCES PROVIDE A FOUNDATION FOR ASSESSING WHAT BEHAVIORAL RESPONSES ARE “NORMAL” VS. BEYOND THE PALE THE BOUNDARIES FOR WHAT IS “NORMAL” IS DETERMINED BY SOCIAL CONTEXT NOW, SOMETHING FROM OUR MUSICAL GUEST HANEY: MODERNIZING THE LEGAL SYSTEM 1 • EXPAND LEGAL EDUCATION • SIMPLIFY LEGAL DOCTRINES & EDUCATE PEOPLE SO THE LEARNING AFFECTS DECISIONS • MORE COMPREHENSIBLE LEGAL DOCTRINES WOULD CAUSE MORE PARTICIPATION IN THE FORMULATION OF LAWS AND IMPLEMENTATION OF JUSTICE • NOT REALLY A CONTEXTUALISM POSITION HANEY: MODERNIZING THE LEGAL SYSTEM 2 • DE-EMPHASIZE PRECEDENT & CATEGORICAL RULES • SOCIETY AND SOCIAL SYSTEMS CHANGE RAPIDLY – THEREFORE PRECEDENCE IS LIKELY OUT OF DATE • CATEGORICAL ATTRIBUTION OF BLAME TO INTERNAL TRAITS VS. CIRCUMSTANCES FAILS TO TAKE INTO ACCOUNT THAT BOTH PLAY A ROLE. • REASONABLE BEHAVIOR IN ONE SETTING MAY NOT BE IN ANOTHER (I.E. CASTLE DOCTRINE) HANEY: MODERNIZING THE LEGAL SYSTEM 3 • LESS EMPHASIS ON DUE PROCESS AND MORE ON JUST OUTCOMES • JUSTICE IS CURRENTLY DEFINED AS ACCESS TO A FAIR PROCESS • BUT THIS IS INHERENTLY UNFAIR BECAUSE RICHER DEFENDANTS HAVE MORE ACCESS TO THE PROCESS THROUGH ATTORNEYS, EXPERTS, OTHER COSTS. • “THE MORE THE RICH AND THE POOR ARE DEALT WITH ACCORDING TO THE SAME LEGAL PROPOSITIONS, THE MORE THE ADVANTAGE OF THE RICH IS INCREASED.” • EXAMPLE: COURT COSTS, BAIL, FINES (I.E. FLORIDA REQUIRES EX-FELONS TO PAY FINES BEFORE THEY CAN VOTE). HANEY: MODERNIZING THE LEGAL SYSTEM 4 • BROADENING THE FOCUS OF COURTROOM INQUIRY • EXAMINING THE ‘WHY’ OF THE BEHAVIOR IN CRIMINAL CASES • GREATER FOCUS ON RESTORING HARMONY WITHIN THE SOCIAL GROUP BY ADDRESSING CONTEXTUAL FACTORS. • PRIMARILY FOCUSES THIS DISCUSSION ON CIVIL LITIGATION, ESPECIALLY SUITS AGAINST GOVERNMENT AGENCIES. HANEY: MODERNIZING THE LEGAL SYSTEM 5 • PROACTIVE AND PREVENTIVE LAW: THE LAW DOESN’T ACT UNTIL SOMEONE COMPLAINS – IT IS REACTIVE • ASSUMES EVERYONE HAS EQUAL ACCESS TO LEGAL RECOURSE – EVERYONE CAN FILE COMPLAINTS WITH POLICE AND SUE FOR REDRESS OF GRIEVANCES. • BUT UNREPRESENTED LITIGANTS ALMOST ALWAYS LOSE. • A PROACTIVE MODEL WOULD PROVIDE EXPERTISE AND ASSISTANCE TO PEOPLE. • EXCEPTIONS: 1. DRUG LAWS, IMMIGRATION, AND PROSTITUTION LAWS DO NOT REQUIRE A COMPLAINT – THEY ARE ENFORCED PROACTIVELY. 2. REGULATION IS PROACTIVE BUT TENDS TO SERVE THE EXISTING STATUS QUO. HANEY: MODERNIZING THE LEGAL SYSTEM 6 • CONTEXTUALIZING CRIMINAL RESPONSIBILITY: • CURRENT INDIVIDUALLY CENTERED APPROACH ASSUMES THE ACT REFLECTS A DEFECT IN THE PERSON’S MORAL CHARACTER • SAMENOW: “THE MYTH OF OUT OF CHARACTER CRIME” ARGUED THAT ALL CRIME REFLECTED THE EMERGENCE OF MORAL DEFECTS THAT HAD BEEN CONCEALED OR UNAPPRECIATED, BUT WERE ALWAYS THERE. • THE PERSON’S CHARACTER IS DEFINED BY THE WORST THING THEY HAVE DONE. • CONTEXTUALIZED CRIMINAL RESPONSIBILITY WOULD ALLOW FOR A SITUATIONAL DEFENSE, SIMILAR TO “BATTERED SPOUSE SYNDROME”. ALTERNATIVES TO INCARCERATION • THE TREND HAS BEEN TOWARD MORE PUNITIVE APPROACHES: • MANDATORY MINIMUM SENTENCES • LONGER SENTENCES • “SUPERMAX” PRISONS • “STACKING” OFFENSES – CHARGING MULTIPLE OFFENSES FOR ONE CRIMINAL ACT • INCREASING EXTRAJUDICIAL PENALTIES: BAIL, FINES, COURT COSTS, ETC. • I.E.: RECENT FLORIDA SUPREME COURT DECISION THAT EX-FELONS THAT HAD COMPLETED THEIR SENTENCE COULD NOT REGAIN THE RIGHT TO VOTE IF THEY STILL OWED FINES. CONTEXTUAL APPROACHES TO CRIME • VIOLENCE PREVENTION PROGRAMS IN COMMUNITIES • RESTORATIVE JUSTICE PROGRAMS • VIEWS THE CRIME AS A FRACTURE IN THE COMMUNITY • WORKS TO RESTORE THE POSITIVE FUNCTIONING IN THE COMMUNITY • ALL THESE GIVE A DIFFERENT MESSAGE TO VICTIMS • FROM “YOU WILL BEGIN TO HEAL BY SEEING THE PERPETRATOR SUFFER” • TO “YOUR HEALING WILL REQUIRE YOU TO COME TO GRIPS WITH THE TRAUMA, INDEPENDENT OF WHAT HAPPENS TO THE PERPETRATOR”
