LOL AC
Practical thought can be centered on a conception of the ought as grounded in the notion of the proper
function of a being or on abstract morality. Elizabeth Anscombe explains,
The terms “should” or “ought” or “needs” relate to good and bad: e.g. machinery needs oil, or
should
or ought to be oiled, in that running without oil is bad for it, or it runs badly without
oil. According to this conception, of course, "should" and "ought" are not used in a special "moral" sense when one says that a man should not
bilk. (In Aristotle's
sense of the term "moral" [ήθικός], they are being used in connection with a
moral subject matter: namely that of human passions and [non_technical] actions.) But they have now acquired a
special so_called "moral" sense-_i.e. a sense in which they imply some absolute verdict (like one
of guilty/not guilty on a man) on what is described in the "ought" sentences used in certain types of context: not merely the contexts that
Aristotle would call "moral"_-passions and actions_-but also some of the contexts that he would call "intellectual." The ordinary (and quite
indispensable) terms "should," "needs,"
"ought," "must"_-acquired this special sense by being equated in the
relevant contexts with "is obliged," or "is bound," or "is required to," in the sense in
which one can be obliged or bound by law, or something can be required by law.
The functional ought makes reference to the characteristic activity of a thing under its natural
conditions. A thing can deviate from its characteristic function by becoming impaired i.e. as we can
say that a good watch and a bad watch are distinguished by how effectively they keep time. Deducing
norms from functional character is necessary because (1) the only coherent use of the word “good” is
attributive i.e. in the sense of a good car or a good watch; there is no content to the idea of something
being good all on its own whereas reference to the purpose of the thing yields content, (2) If the
functional view is wrong there will be no justifiable inference from factual premises to oughts, so all
ought premises would have to be warranted by other oughts, and norms would have no foundation, (3)
if we could talk about “good” in the abstract we would be able to coherently infer from “x is a good
car” that “x is a good” and “x is a car” but it makes no sense to talk about x being “a good”. Since the
object of the resolution is the criminal justice system this means that saying what the system ought to
do can only be done with reference to the purpose of the system.
The criminal justice system is an artifact rather than a naturally occurring being meaning that its
functional ought makes no reference to practical norms generally because it is possible to create
artifacts that serve exclusively bad purposes. One can say that a poison ought to kill someone when
used even if killing is immoral because the function for which poison is created is to kill.
The criminal justice system is individuated by (a) the fact that belongs to the US and (b) the fact that it
has whatever constitutive role it plays in the governmental structure because if it were defined by
relevant law governing it then we would say that the US has a new justice system every time the law
changed.
Functional aspects of other governmental institutions do not bear on the resolution because the criminal
justice system is a sub unit of the government on the whole so norms applicable to the whole do not
apply to the part for instance the function of the heart is to pump blood but the function of the body on
the whole is not to pump blood meaning that functional arguments related to other aspects of
government do not apply to the resolution.
Appeals courts are a different functional unit of the government because the power to determine who is
guilty is distinct from the power to determine where the law lies.
Rawls explains the constitutive character of punishment:
One might say, however, that the utilitarian view is more fundamental since it applies to a more
fundamental office, for the judge carries out the legislator's will so far as he can determine it. Once the
legislator decides to have laws and to assign penalties for their violation (as things are there must be
both the law and the penalty) an institution is set up which involves a retributive conception of
particular cases. It is part of the concept of the criminal law as a system of rules that the application and
enforcement of these rules in particular cases should be justifiable by arguments of a retributive
character. The decision whether or not to use law rather than some other mechanism of social control,
and the decision as to what laws to have and what penalties to assign, may be settled by utilitarian
arguments; but if one decides to have laws then one has decided on something whose working in
particular cases is retributive in form.
The application of non-retributive considerations to actions taken by the criminal justice system turns
the system into a mechanism of promoting some end other than applying the law. The basic
requirement of retributive acts in legal terms is mens rea or psychological dimension of the crime for
the system to serve its purpose then laws must be applied in accordance with the relevant mens rea –
this means laying down the relevant sentence given the degree to which the guilty is culpable so my
standard is application of mens rea categories that track differences in responsibility.
I contend that application of the diminished capacity defense, when relevant, to juveniles satisfies the
requirements of mens rea practice while juvenile sentencing does not. Juvenile jurisprudence absolves
the accused of criminal liability as though they were completely non-culpable. Michele Cotton writes,
It may now be difficult to believe, but at one time
the juvenile justice system was willing to explicitly denominate itself as
"deterministic." Justice White remarked that while "the criminal law proceeds on the theory that
defendants have a will and are responsible for their actions[,] ... . for the most part, the juvenile justice system rests on more
deterministic assumptions." Thus, "reprehensible acts by juveniles are not deemed the consequence of mature and malevolent
choice but of environmental pressures (or lack of them) or of other forces beyond their control.” Similarly, one federal court described
juvenile justice's rehabilitative ideal as "rooted in a determinist view of young people" that sees them as "essentially
products of their environments and so not yet responsible for their own acts." Along the same lines, the Nevada Supreme Court explained that
“the juvenile court from its inception in Illinois in 1899 until approximately the middle of this century was a child-centered institution based on theories
taken from the positive school of criminology and especially on
the deterministic principle that youthful law violators are not morally or
criminally responsible for their behavior but, rather, are victims of their environment.”1
The assumption that juveniles are fully non-culpable assimilates them to a mens rea category with the
criminally insane, which is palpably wrongheaded. Rational action is the power of acting for reasons,
and this power is not absent just because someone can act for bad reasons. Even young children are
obviously capable of rationalizing decisions. Gerry Maher 1 writes,
In my view
the assimilation of the infant and the insane is misleading. It tries to squeeze into the age-based
defense the same justification as that used for insanity, namely that the person accused of an offense is completely
lacking in practical rationality.
But
this does not seem as obviously true of children as it is for the mentally
disordered. Children of a certain age (and often of a young age) can give reasons for doing what they do.
distorted in the same way as those provided by the mentally disordered (“fairies told me to do it”), but
Sometimes these reasons seem
usually children explain actions in terms of coherent
reasons which make (some) sense of the world around us. Rather the point is that as adults we judge that
children have a defective or incomplete capacity to consistently apply or act out their motivations or
J.D. NYU Law School PhD Brandeis. “A FOOLISH CONSISTENCY: KEEPING DETERMINISM OUT OF
THE CRIMINAL LAW” 15 B.U. Pub. Int. L.J. 1.
1
reasons for acting. Children, even at a relatively early age (in other words when they proceed beyond infancy), have the capacity for
rational action.2
Apart from the criminally insane, irrationality sufficient to defeat culpability is not present in persons –
deprivations of culpability are scalar in character. David Brink 1 writes,
Normative competence can be compromised in various ways that the law recognizes. The insane and the
severely mentally retarded lack normative competence and, as a result, are not responsible. But normative competence
is not an all or nothing matter, and there is good reason to suppose that immaturity involves a form of
reduced or diminished normative competence. Normative competence involves the cognitive ability to
discriminate right from wrong but also the affective and conative abilities to regulate one’s emotions,
appetites, and actions in accordance with this normative knowledge.
the ability to refrain from acting on one’s good-independent desires that is necessary to being guided by one’s good-dependent desires.
One central ingredient in normative competence is impulse control –
All of these capacities appear to be
scalar insofar as they can be possessed to different degrees. The gradual development of this
competence is what marks normal normative progress through childhood and adolescence to maturity.3
Emotional volatility, susceptibility to peer pressure, and the ongoing development of the structure of
the frontal lobes hamper the application of capacities for practical self-management but do not undercut
agency wholesale. No one doubts that juveniles have the capacity to act for reasons and with foresight.
Failure to accommodate scalar variation in culpability leads to sentencing inconsistent with mens rea.
David Brink 2 writes,
Older mature adolescents will often be significantly, if not fully, normatively competent. So they can be
largely, if not fully, responsible for committing heinous crimes. Under the traditional juvenile sentencing rules that
require juvenile sentences to expire by the age of majority, such offenders are unlikely to receive
sentences commensurate with their wrongdoing. Indeed, there is a puzzle for the traditional juvenile sentencing system that
the older and more responsible the offender the less time is he eligible to serve for his crimes.4
Criminal code currently incorporates the notion of scalar culpability under the partial responsibility
2 Queen's Counsel and Professor of Law at University of Edinburgh. “Age and Criminal Responsibility”. OSU Journal of
Criminal Law Vol. 2:493.
3 Professor of Law and Philosophy at UC San Diego. “Immaturity, Normative Competence, and Juvenile Transfer: How
(Not) to Punish Minors for Major Crimes.” Texas Law Review Vol. 82 2004.
4 Brink.
defense. Stephen Morse 1 explains,
Partial responsibility is a form of lesser legal insanity: The defendant is claiming that, as a result of
mental abnormality, he is not fully responsible for the crime proven against him. Even if the technical elements of an
offense are satisfied, the defendant is less culpable and should be convicted of a lesser crime, or, at least,
should be punished less severely.5
The basis of distinction here is scalar. Morse 2 continues,
The rationales for holding a defendant partially responsible and for excusing him by reason of insanity
differ only in degree. The preconditions for moral and legal responsibility are, inter alia, that the actor is
reasonably rational and in control of his actions. Actors, such as small children, who lack reasonable cognitive or volitional capacity through no fault of their
own may be dangerous, but are not considered fully responsible as moral agents. This basic intuition about the way cognitive and volitional capacity relate to responsibility is tracked by the insanity defense
tests, which all focus on the actor's irrationality (e.g., lacks substantial capacity to appreciate the criminality of his actions) and/or lack of self-control (e.g., lacks substantial capacity to conform his actions to
the requirements of law).
Although the law draws a bright line for legal responsibility, human cognitive and volitional capacities and
behaviors
are clearly distributed along a very lengthy continuum of competence. All legally sane defendants will not be equally rational or equally in
possession of self-control at the time of the prohibited act.
When a legally sane defendant has impaired rationality or self-control
because of mental abnormality -- a cause he is allegedly unable to control --
an argument for some form of lessened responsibility arises.6
So wherever there is evidence that a given juvenile has diminished agency the common law justifies
appeal to a partial responsibility defense to downgrade the severity of the crime or sentence.
My argument is not that all juveniles have legitimate grounds for a partial responsibility defense but
rather that if youth is correlated with diminishing grounds then the adult legal system already
incorporates the proper remedy. Even if most juveniles have these features to ascribe them to the
whole class is to commit a probabilistic fallacy. Probabilities are systemic properties that are not held
by individuals – if there are five red marbles in a bag of ten, the probability that any marble drawn will
be red is .5, but this doesn’t mean that the probability that any particular marble will be .5 – it will or
won't be red so the probability will be 0 or 1. Similarly juveniles may be more likely to have
culpability mitigating traits but that doesn't license a categorical distinction on that basis. The
diminished responsibility defense recognizes this fact.
5 Professor of Law at USC. “Undiminished Confusion in Diminished Capacity.” 75 J. Crim. L. & Criminology 1984.
6 Professor of Law at USC. “Undiminished Confusion in Diminished Capacity.” 75 J. Crim. L. & Criminology 1984.
The assimilation of juveniles to this framework makes sense of the exact manner in which they are less
culpable. Gerry Maher 2 writes,
Accordingly
if there is an analogy to be used here it is between children and the category of persons formerly
known as psychopaths. Both have the capacity for engaging in rational action but both, for very different reasons, find it
difficult to apply it in a consistent way.
The criminal responsibility of the psychopath is, to put it mildly, controversial, even more so than that of persons who are more
definitely mentally disordered. Yet even if the analogy is weak, there is an interesting consequence.
A dominant (but far from exclusive) view about psychopaths is
that they are not completely lacking in criminal responsibility. Their responsibility for their conduct is
incomplete.
As a consequence,
although the psychopathic criminal may be liable to conviction, his condition has
relevance at the punishment (or disposal) stage of the criminal justice system. In my view much the same holds in respect of
children.
On this basis children are responsible agents, but their responsibility is in some way defective or incomplete. Some
writers have
described this situation by using the Scots law term “diminished responsibility.”7
This application has an established role in common law jurisprudence. Franklin Zimring writes,
To consider
immaturity as a species of diminished responsibility has some historic precedent but little analytic pedigree.
Children below seven were at common law not responsible for criminal acts by reason of incapacity,
while those between seven and fourteen were the subject of special inquiries with respect to capacity.8
7 Queen's Counsel and Professor of Law at University of Edinburgh. “Age and Criminal Responsibility”. OSU Journal of
Criminal Law Vol. 2:493.
8 Professor of Law at UC Berkeley. “ Toward a Jurisprudence of Youth Violence.” 24 Crime & Just. 477 1998.