Thursday, March 31, 2011
Paul H. Robinson (University of Pennsylvania Law School) has posted Are We Responsible for Who We Are? The Challenge for Criminal Law Theory in the Defenses of Coercive Indoctrination and ‘Rotten Social Background’ on SSRN. Here is the abstract:
Should coercive indoctrination or “rotten social background” be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community’s shared intuitions of justice support it. The law’s rejection of such defenses suggests that there might be little popular support for them.
This is not necessarily the end of the story, however. Coercive indoctrination has in some cases, such as that of POW Richard Tenneson, prompted considerable public sympathy, confirming that lay persons do tend to exculpate some such offenders. Such intuitive support for a coercive indoctrination defense suggests that there may be practical crime-control value in having the criminal law recognize it. If the criminal law can build its reputation as a reliable moral authority with the community it governs, it can harness the potentially powerful forces of social and normative influence.
There are good arguments for seeing “rotten social background” as a form of coercive indoctrination and, thus, for considering it too for a defense under such a newly-created doctrine. However, while the two defenses may be analogous, having a “rotten social background” by itself is not likely to meet the minimum prerequisites that logically would adhere to a coercive indoctrination defense, and certainly would have little intuitive support. On the other hand, specific cases of “rotten social background” might well qualify, if it is shown that that experience forced upon the person a set of beliefs and values compelling him toward the offence that he could not reasonably have been expected to resist.