Monday, October 2, 2017
David O. Brink (University of California, San Diego) has posted Partial Responsibility and Excuse on SSRN. Here is the abstract:
Anglo-American criminal law is broadly retributive in character, predicating blame and punishment on culpable or responsible wrongdoing. However, responsibility is scalar, and there is an important question how criminal trials should handle cases of partial responsibility, especially in light of Blackstone’s belief that it is worse to over-punish than to under-punish. I examine four approaches: (1) a bivalent system with a comparatively low threshold for responsibility/excuse operative in American criminal law; (2) a trivalent system operative in some European criminal justice systems; (3) a tetravalent system, which rounds punishment downward in response to Blackstone’s asymmetry; and (4) a fully scalar analog system that aims at proportionate justice. A bivalent criminal justice system fails to deliver just deserts in significant ways. Proportionate justice is comparatively easy to understand in principle but potentially fragile in practice. Aiming at proportionate justice may minimize unjust deserts. However, if the difficulties of implementing proportionate justice are severe enough, we might prefer a discontinuous system that is more fine-grained than bivalence. Trivalent and tetravalent systems are alternatives worth exploring.