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December 13, 2022

"Criminal Justice Reform and the Centrality of Intent"

The title of this post is the title of this new paper authored by Cynthia Ward and now available via SSRN. Here is its abstract:

The nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system.  These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice.  But less attention has been given to reforming the substantive content of the criminal law — specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in criminal cases.  Yet important change is needed in this area.

This article addresses that need, proposing to abolish three substantive doctrines which share a common flaw: They all reduce or eliminate the prosecution’s burden of proving a defendant’s mental culpability — their 'intent' — in criminal homicide cases.  The three doctrines arise in two overlapping areas of the criminal law: the law of homicide and the law of accomplice liability.  All three doctrines make it significantly easier to secure convictions, for serious crimes including murder, without requiring the state to prove the defendant’s mental culpability with respect to the specific crime charged.  The solution to this injustice — and the chief recommendation of this article — is therefore identical in all three cases: Amid the current national and bipartisan movement to reform the criminal justice system, legislatures and courts should abolish these doctrines.

December 13, 2022 at 09:30 AM | Permalink


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