[MUSIC] Welcome back to the final section of this lecture. Let us begin with the affirmative defenses of excuse. In cases of excuse, defendants have done wrong, but they are not held accountable because we think there is some reason that they are not responsible for what they did. In cases of justification, the defendant is a responsible person who has done the right thing or the permissible thing. In cases of excuse, a non-responsible person has done the wrong thing. Examples of excuses are infancy, insanity and duress. Understanding them requires an explanation of what the law means by a responsible person. I believe that the criminal law quite precisely agrees with the ordinary morality criteria for responsibility and excuse. Recall our discussion of the types of creatures we are, the types of creatures who can rationally be guided by reason. Now think about your implicit standards for believing that someone is the type of person, who would be blameworthy if they did wrong. You expect such people to have the capacity to be reasonably rational and to have acted without compulsion. If they have this rational capacity and were not compelled, then you would consider them responsable. In contrast, if the person does not have the capacity to be rational, or if they were compelled to act, you would be inclined to excuse and forgive them. The criminal laws excuses mirror these everyday criteria. We excuse young children who intentionally do wrong, because their capacity for rationality is not fully developed. We excuse some people with mental disorder, because the disorder undermines their capacity to act rationally even if they are prima facie guilty. Suppose someone threatens to kill you unless you kill someone else. If you yield to the threat and kill the innocent third person, we might excuse your intentional killing, because we would conclude that the threat produced such a hard compelling choice that we couldn't expect you not to kill and thus you are not responsible for the intentional killing. A particularly hard question about excuses is raised when a wrongdoer's capacity for rationality was seemingly fine and no one was threatening him, but he claims that he couldn't control himself or couldn't help himself when he committed the crime. Cases of addiction or child molestation are examples. But exploring this topic of self control, excuses is for an advanced and not an introductory lecture. Indeed the whole issue of excuses is theoretically and factually complex, but once again, you must have the general idea. I have not previously mentioned free will in this lecture. Free will is not a criterion for any criminal law doctrine. And our whole system of criminal blame and punishment, does not depend on a presumption of so called metaphysical free will in the strong sense. That is the ability of people to act uncaused by anything but ourselves. When we excuse, it is actually because defendants lack rational capacity or are compelled to act, and not because they lack free will. There is a philosophical metaphysical debate about free will and it's relation to responsibility in some ultimate sense. But it is not a debate within criminal law. Now let us return to Eric Clark. Permit me to change the facts a bit. Supposed Clark knew Marts was a person and a police officer, but as a result of a severe mental disorder, he delusionally believed that when Marts stopped him, Marts was about to kill him. He therefore shot and killed Marts in the belief he needed to do so, to save his own life. In this case he purposely took the life of a victim, he knew was a person and a police officer, but he acted for a crazy reason. His delusional belief, that was a product of his disorder, rather than being caused by his carelessness or the like. His capacity for rationality, under the circumstances, was severely compromised, and he is a candidate for the excuse of legal insanity. The criteria for this excuse, and recall that all justifications and excuses have their own criteria, are that he was suffering from a mental disorder and, more importantly, as a result did not know right from wrong. In this hypothetical case if we believe him, he did suffer from a mental disorder and as a result he didn't know that killing Marts was wrong. He delusionally and genuinely believed that his own life was wrongfully in danger, and that he had a legal right to kill Marts to save his own life. Never the less, it was wrong to kill Marks because the officer was not threatening Clark. But Clark was not a responsible person because he did not know that he was doing wrong and it was not his fault that he made this mistake, thus he will be acquitted by reason of the excuse of legal insanity. Assume that its prosecution is able to prove its case beyond a reasonable doubt and that no affirmative defense is established. The defendant will then be found guilty of the crime charged and deserves to be punished. At this stage we are ready for the last part of our discussion, sentencing. The imposition of the proper punishment. Most experienced criminal defense attorneys will tell you that their clients care far more about whether they will go to prison, and for how long than about whether they are convicted. Yes, a conviction imposes blame and stigma, but for most people, going to prison, the primary punishment in the United States is profoundly painful and to be avoided for the many reasons that are not difficult to imagine. Thus, the possible punishments, and the process by which they are imposed, are of the utmost importance to the state and to the individual. The goals of sentencing are generally the same goals that generally justify criminal blame and punishment. Giving offenders their just dessert and preventing crime. But sentencing schemes are seldom precisely clear on how these goals should be weighed and balanced in general, or how they should be applied in individual cases. Recent decades have seen greater emphasis on retribution and less indeterminate sentences. But the pendulum may be swinging towards more evidence based crime control that focuses on the offenders risk of future criminal behavior. The punishments that may be imposed for crimes are set by the legislature, or by an administrative agency the legislature authorizes to do this. The Supreme Court has repeatedly held that the 8th amendments prohibition of cruel and unusual punishments, sets almost no constraints on the terms of years legislatures may authorize. The Supreme Court has held some exceedingly severe sentencing schemes, such as California's original three strikes and you're out law. Which permitted a sentence of 25 years to life, for a defendant convicted of a third felony, even if the third felony was relatively minor, and the prior two felonies were not so serious. There is enormous disparity across and within jurisdictions concerning the proper sentences for various crimes. Once again, the federal laboratory is at work. Juries decide whether the defendant is legally innocent or guilty, and with the primary exception of capital sentencing, judges impose sentences. Generally, the legislature provides for a range of sentences for each crime, but is often unclear what sentences, retribution or crime control demand. Judges therefore, have wide discretion to decide what sentence to impose within the statutorily authorized range. They're typically aided in this by non-binding pre-sentence reports prepared by probation officers, or other court personnel that address the defendant's background, the circumstances of the crime, and other sentencing considerations. In some jurisdictions, judicial discretion is constrained by legislatively mandated guidelines, or by required mandatory minimum sentences that must be imposed. Despite attempts to rain in unjustified discretion, inequality in sentencing for similar crimes committed by similar defendants remains a disturbing phenomenon. There has been a great deal [INAUDIBLE] concerning sentencing in recent decades, reflecting the recognition of how important it is to individual lives and to the society as a whole. Everyone hopes that the attention paid and the thought given will produce a more just and effective sentencing system. But whether that result will be achieved is an open question. Let me conclude this section on sentencing by pointing out another way in which the United States is distinctive. Imprisonment and fines are a common feature across a wide range of nations, but what sets apart sentences in the United States, compared to other developed nations, is the much greater length of prison terms we impose for most crimes. I leave aside here, capital punishment, which among western developed nations, only the United States imposes. Despite the controversy concerning the moral appropriateness and crime-control effectiveness of the death penalty, and the distinctiveness of our imposing it, it applies to so few cases that for this lecture I will simply treat it as an example of comparative harshness of our punishments. Let me therefore return to the example of imprisonment to illustrate my point about the length of sentences. Please compare Bernard Madoff, whose massive fraud harmed in impoverished large numbers of innocent people, wiping out retirement savings and other crucial forms of investment, and security. To Anders Breivik, the young Norwegian internationalist, who killed eight people in Oslo bombings to create a diversion, invaded a summer youth camp for members of a political party he despised and systematically slaughtered 69 people at the camp. Madoff, who was 71 years at the old at the time of sentencing for his fraud, received 150 years in prison for his Ponzi scheme. Breivik, who is 32, received 21 years for his mass murders of 77 people. Breivik would have to serve at least ten of the 21 years, although, he could be detained for much longer in Norway on non-penal grounds. Non-penal grounds, if he were found to still be dangerous. With no lack of compassion or respect for Madoff's victims. I can safely say that what Madoff did was far less blameworthy and harmful, but our law permitted a vastly greater sentence than Norwegian law provided for Breviks multiple murders. Of course, Madoff was much older and likely to effectively serve less time, but that is beside the point. If he had been Brevick's age the sentence disparity would be even clearer. It goes beyond the scope of this lecture to explain why our sentences are so comparatively severe. And I'm here taking no position on whether such severity is justified, but it is simply a fact that sentences in the United States tend to be comparatively severe. Let me say a few words in conclusion about the future of criminal law. We have covered a lot of territory. Here is a brief speculation about the future. As we all know from reading the newspapers and other media, there have been major advances from the various sciences in our understanding of the causes of human behavior. Hardly a day goes by without a revelation from psychology, genetics, neuroscience, and other disciplines that study human behavior. Our criminal law is based as we have seen on our ordinary understanding of ourselves as persons. As we learn more and more about ourselves, will we come to see ourselves as the non-responsible victims of casual forces over which we have no control. If so, this would justify abandoning our practices of blame and punishment that take people seriously as moral agents. Many think that this development is possible and even desirable. In contrast, I think that this is highly unlikely for many reasons. And I believe that our view of ourselves as creatures who act for and can be guided by reason, which is the basis of criminal law and ordinary morality as, is here to stay. And it's a good thing too. Our current concept of personhood is at the core of concepts like liberty. Dignity and respect and concern for people that contributes to the richness of our lives. I believe it would be a human disaster to abandon these concepts, and there is no scientific or moral justification for doing so. Criminal law is a complex and fascinating topic. I hope that you found this lecture interesting, and that it had provided you with tools to think about criminal justice issues as concerned citizens. Thank you very much. [MUSIC]
