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November 24, 2009

"Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders"

The title of this post is the title of this new paper on SSRN from Stuart Green.  As the abstract reveals, this seems like a perfect paper to generate deep thoughts during a Thanksgiving holiday:

Criminological studies consistently indicate that a disproportionate percentage of crimes in our society, both violent and non-violent, are committed by those who are impoverished.  If we assume that at least some of the poor who commit crimes are poor because they fail to get from society what they “deserve” in terms of economic or political or social rights, the question arises whether this fact should affect the determination of what such people “deserve” from society in terms of punishment.  The question is all the more pressing given recent Census Bureau figures indicating that the economic recession that began in 2008 has resulted in a higher percentage of Americans living below the poverty line than at any point since 1997, with figures for 2009 certain to be even worse given rising unemployment rates.

Most scholars who have been concerned with this issue have assumed that there is one set of principles that will explain the proper relationship between distributive and retributive justice:  The fact that an offender has been denied the basic entitlements of a just society, however defined, is taken to have implications for criminal liability across the board, regardless of the offense charged.  The argument that I develop here suggests that a proper analysis of the relationship between distributive and retributive justice should proceed on a case-by-case basis.

Such an analysis would take account of three distinct factors:  First, it would look to the specific kind of offense with which the offender is charged.  The fact that an offender is deeply and unjustly disadvantaged might be relevant to determining his blameworthiness for committing one kind of criminal offense (say, an offense against the person) but not another kind of offense (say, an offense against property or an offense against the administration of justice).  Under this approach, we need to consider what it is that makes an offender blameworthy for committing a particular kind of offense in the first place, and then ask whether and how such blameworthiness is affected by his disadvantage.  Second, we need to look at the precise form that the offender’s disadvantage takes.  The fact that an offender has been denied any reasonable opportunity to obtain property, for example, might be relevant to determining his blameworthiness for committing a particular kind of offense in a way that his being denied the opportunity to participate in the political process or the right to certain kinds of basic police protection by the state might not.  Third, we need to consider the economic and social circumstances of the crime victim, if any.  For example, a criminal act directed by a disadvantaged offender at a similarly disadvantaged victim might be blameworthy in a way that the same crime directed at a privileged member of the political or economic elite would not

November 24, 2009 at 05:46 PM | Permalink


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I suppose that if you agree with the central assumption of this article then the result will be valid. I just don't see that there are very many impoverished people who are there because society doesn't try hard enough. I see plenty of the opposite, people who are impoverished because society makes it easier. Examine SC's comments on the black family and bastardry, there is more than a grain of truth to it.

I certainly don't see that anyone is denied political rights based on economic considerations. I am not even sure what is meant by "social rights".

Honestly this sounds like yet another tired attack on personal responsibility.

Posted by: Soronel Haetir | Nov 24, 2009 6:29:19 PM

The problem that I have with this analysis is that it's backwards. Rather than asking why poor people commit crimes we should be asking why so many poor people don't commit crimes. It seems to me that if anyone has a legitimate compliant it is what the Catholic tradition entitles the "righteous poor". Hard working law abiding Americans who wind up with nothing while Bloomberg is worth half a billion dollars. It seems to me that if we want to set a good example we should be asking why the rewards for socially desirable behavior are not spread evenly rather than making justifications for criminal behavior.

I do understand why underprivileged people turn to a life of crime. I think there are some legitimate complaints. But rather than dreaming up excuses for rewarding undesirable behavior we should be focusing on rewarding desirable behavior so that those people with legitimate complaints never turn to a life of crime to begin with.

Posted by: Daniel | Nov 24, 2009 7:03:11 PM

"For example, a criminal act directed by a disadvantaged offender at a similarly disadvantaged victim might be blameworthy in a way that the same crime directed at a privileged member of the political or economic elite would not."

Only an intellectual could come up with such nonsense.

Posted by: federalist | Nov 24, 2009 7:47:31 PM

" "For example, a criminal act directed by a disadvantaged offender at a similarly disadvantaged victim might be blameworthy in a way that the same crime directed at a privileged member of the political or economic elite would not."

Only an intellectual could come up with such nonsense."

No. I agree. I would like to see street people bring immunized street justice to the criminal lover judge, the criminal lover legislator, and the criminal lover lawyer elite, such as all members of the ALI. Just beat their asses with pipes. Then coddle the street justice delivery service, and have them move in next door to these elites in America hating judge mandated poor people housing. The full time Roman Orgy lifestyle begins right after the street people wake up, around Midnight. It includes loud street arguments with the eff word every other word, and street dispute resolution with 9 millimeters held sideways.

This is what these elites are doing to poor people, herding crime into their neighborhoods and immunizing the vicious predators.

Posted by: Supremacy Claus | Nov 24, 2009 8:46:22 PM

This is not a sarcastic question. Is Prof Berman posting items like this one to be a provocative professor to generate heated responses from the classes and making the classes lively. And, he knows it is crap. Or, is Prof. Berman an idealistic left wing whose sophistication stopped developing around the 9th grade? I am sincerely curious about how idealistic/realistic he is.

Here is a clue. Criminality causes poverty, even in talented wealthy athletes and artists. If you have antisocial personality disorder, you either walk off the job at the first criticism, or you beat up the foreman when asked to redo something, and lose the job.

Here is another clue. There is no poverty in the USA. Find the poorest person in the US. There are 5 billion people, middle class, educated people, some of them, who would love to trade places with the person.

Posted by: Supremacy Claus | Nov 24, 2009 8:54:05 PM

"Unjustly disadvantaged." Leave it to the psuedo-intellectuals to coin a new,loaded term. Just how is someone unjustly disadvantaged. Is it because their mother did not finish high school, was with child at sixteen and never married?

If society is at fault in this scenario it is because people remain ignorant of the relationship between fatherlessness and social pathology. Daniel Patrick Moynihan warned about this in the 60's but the country went in the wrong direction with the Great Society programs that only exacerbated the culture of dependency. The most effective poverty reduction program does not involve money but the following advice: graduate from high school; have your first child after the age of 20; and be married when you have your first child. Poverty rates for those who follow this prescription are in the high single figures.

Posted by: mjs | Nov 24, 2009 8:56:10 PM

Stuart Green. Not an intelligent high school student, but...

"Professor of Law and Justice Nathan L. Jacobs Scholar, Rutgers School of Law-Newark."

What the ...?

This illustrates the universal harm of the one way communication structure of the criminal cult indoctrination nature of the law school education. He never gets feedback that might hint to him, he is making a huge fool of himself.

Even I feel embarrassed for the child like, obsolete view of crime. There is not even a need to rebut this paper that could have been written in 1909, but not in 2009. It also illustrates the embarrassing arrangement of having student editors who know nothing about nothing.

Lastly, he presented the paper at the U of Chicago Legal Forum. I thought the U of C was a small island of sense in a Pacific of lawyer nuttiness. Apparently, the professor was allowed to present this paper at the U of C.

Posted by: Supremacy Claus | Nov 24, 2009 10:07:01 PM

There is something deeply ironic about SC calling someone else a nut. Takes on to know one I guess.

Posted by: Daniel | Nov 24, 2009 11:16:39 PM

Daniel: Believe it or not, I bring mainstream views to the self-deluded weirdo freaks here. You feel normal only by insulating yourself in this little psychotic group, away from the world.

For example, I have said, PC was the proximate cause of the Fort Hood massacre.

Now, the majority of the public (63%) says the same. It is self-evident, except to the weirdo freaks here.


I have a little more legal knowledge than the public. I add that all PC is self-dealing lawyer pretextual case. Come the next major terror attack, all internal lawyer traitors in responsible positions get swept away. To deter. I would force all government funded educational institutions to administer a yearly loyalty oath to all faculty. Any utterance that violates the oath should be grounds for immediate firing, once verified. Students are being indoctrinated into left wing hatred of America. These disloyal Americans should be eliminated from their positions of influence.

I believe lawyer supernatural doctrines express loyalty to a church that imposed mythical doctrines by killing millions of people. I would fire the entirety of the current legal faculty. They are all disloyal to the nation, with no exception known to me.

We are a secular nation. Anytime a law prof expresses a bullshit supernatural doctrine, the students should throw food at him. If he keeps doing it, put a big dunce hat on him, and forcibly march him off campus. Tell him to not come back.

Examples of false, church based myths? "Intent" is mind reading. "Foreseeable" is future forecasting of rare events. "Adversary" is method from Scholasticism and church. Even worse than church, it is French church. "Usury" is lawyer language for Jew, and antisemitic. "Jury" is twelve know nothing strangers detecting the truth by using their gut feelings, valid as entrail reading by Gypsy fortune tellers. Here is the ultimate: "reasonable." Code for Jesus Christ, an unlawful word, treasonous to the Constitution.

The lawyer believes in these supernatural doctrines, and imposes these delusions on the public at the point of a gun. Someone pointing out how wacked the profession is labeled insane. Ironic.

Posted by: Supremacy Claus | Nov 25, 2009 5:14:17 AM

The article is Marxism impersonating goobledygook.

Or goobledygook impersonating Marxism.

I'm not sure which.

Posted by: Bill Otis | Nov 25, 2009 1:03:37 PM

Let's hear some explanations, nay, solutions, on why we hear so many stories about family murder/suicides due to the economic crisis. * Saying there should not be murder/suicides of families (doh) does not solve the problem. Note too that most of these family murder/suicides are not perpetrated by Black men.

* Recession to Fuel More Family Murder, Suicide.

Posted by: George | Nov 25, 2009 4:44:27 PM

What Daniel says makes sense.

Besides, poor people aren't the only demographic getting screwed by our lumbering, over-bearing, for-profit justice system. In some ways the poor are better protected from it because of their anonymity and resulting lack of headline-generating potential.

To me, the big victims of our arrogant, thuggish justice system these days are white-collar business people.

No other group (with the possible exception of Arab Americans) is demonized to the extent they are. No other group is specifically targeted as they are with vague, sweeping, flypaper Commerce Clause statutes originally concocted to topple mob bosses and drug kingpins.

Posted by: John K | Nov 25, 2009 9:14:18 PM

John: The business model is from the Inquisition. "You blasphemed God by eating meat on Friday. You may choose to be burned at the stake or to forfeit your estates to the Church."

The Inquisition came to an end when the French Revolution beheaded 10,000 self-dealing church officials.

The model for the remedy for the out of control land piracy of the federal thug can also be taken from history.

Question if you are in the white collar crime defense. Would you be willing to legally attack the person of the federal prosecutor? For example, demand discovery of their personal and work computer searching for an improper motive. When you find child porn, have the FBI arrest them. To deter. How about ethics complaints, countersuits, and ruinous campaign of personal vilification? Generate massive government costs for division survival. If you sue, however, frivolous the claim, everyone in the Division will lose their job, due to the cost to the government they caused. Do the same for the pro-government make work judge. I would like to see the balance of fear tilted to a more even level.

No white collar defense lawyer will consider these tactics. Rigorous counter-attack would kill their jobs too.

Posted by: Supremacy Claus | Nov 26, 2009 6:44:03 AM

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