Abstract: This article recommends the development of broad policies of preclusion regarding the use of incarceration for offenders who are highly unlikely to commit a violent crime in the future. The proposal builds on the new Model Penal Code: Sentencing's provision on the limited utilitarian purposes of incarceration. Such low-violence-risk-preclusion strategies (LVRPs) would stand on the most powerful predictive capabilities of today's risk assessment technology. If implemented properly, there is reason to believe that substantial drops in prison rates could be realized in most states. The preclusion groups would include defendants who should not be sent to prison or jail by sentencing judges even though the law allows for such penalties; those serving prison sentences who should be released by parole boards or other releasing authorities at the earliest opportunity; and probation and parole violators who should not be revoked to prison or jail. The strongest objection to the LVRP proposal is the fear of racial or other unacceptable biases in its apportionment of reduced-incarceration benefits. Given current high levels of disproportionality in prison and jail populations, however, there is reason to think that the benefits of LVRP would be especially pronounced in disadvantaged communities.

Abstract: What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there? If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization assumes. We combined advanced functional brain-imaging technology with new artificial intelligence tools to see if the brain activities during knowing and reckless states of mind can ever be reliably distinguished. As our experiment indicates, the answer is Yes. So here we provide an overview of our brain-scanning experiment, discuss important implications, and detail several necessary precautions, so our results won’t be over- or mis-interpreted.

Abstract: In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the resistance and subversion that is provoked by perceived violations of blameworthiness proportionality. Such a principle has been commonly used as the basis for criticizing improper aggravations, such as the doctrines of felony murder and “three strikes,” but the principle also logically requires recognizing a full range of deserved mitigations, not as a matter of grace or forgiveness but as a matter of entitlement. And given ordinary people’s nuanced judgments about blameworthiness proportionality, maintaining moral credibility with the community requires that the criminal law adopt an equally nuanced system of mitigations. Such a nuanced system ideally would include reform of a wide variety of current law doctrines as well as, especially in the absence of such specific reforms, adoption of a general mitigation provision that aims for blameworthiness proportionality in all cases. Such a general mitigation ought not be limited to cases of “heat of passion” or limited to cases of murder, as today’s liability rules commonly provide. It ought to be available whenever the offense circumstances and the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness, as long as giving the mitigation does not specially undermine community norms.

Abstract: The concept of consent is ubiquitous in the West. It is the foundation of its construction of meaning for sovereignty (and political legitimacy), and for personal autonomy (and human dignity). Ubiquity, however, has come with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus faced morality of political correctness. It takes as its starting and end point the idea that free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented. The exploration is framed around the recent arguments in the American Law institute’s Model Penal Code Project around the meaning of consent in sexual relations. The essay first situates the problematique of consent — as action and object that incarnates power relations and the boundaries of the taboo. It then illustrates the way that semiotic meaning making produces a political correctness that produces paradox by critically chronicling the meaning of consent respecting sexual intimacy in criminal law. It enhances sexual liberation by placing it within a cage of limitations that ultimately transfers the power over consent form the individual to the state. That meaning making suggests the way that consent as an act, and as a state of being, is transposed to the broader context of political economic relations.

Abstract: The U.S Model Penal Code (MPC) states that retribution—the notion that by punishing a criminal offender he gets his moral "just deserts"—is the primary justification for criminal punishment. However, the MPC indicates that other purposes may also be considered, including deterrence, incapacitation, and rehabilitation. The MPC uses a sentencing model called limiting retributivism, whereby forward-looking principles of punishment aimed at decreasing crime can be considered with the upper limit of proportional punishment set by retributivism. The "father" of limiting retributivism, Norval Morris, argued that the imposition of punishment should also obey the principle of parsimony—that is, the sentence imposed should be no more severe than necessary to achieve its purposes. This paper will explore the ways in which the state can inflict punishment under limiting retributivism in a way that fulfills the notion of "just deserts" while utilizing the forward-looking principle of rehabilitation to mitigate harmful effects on moral agency related to burdensome and condemnatory treatment of offenders.

Abstract: The purpose of this paper is to examine the penalties proposed in the Model Penal Code when a police officer engages in sexual conduct while on duty. At issue is whether the Model Penal Code should explicitly make it an enhanced penalty or offense when a law enforcement officer engages in sexual conduct while on duty with any individual, including a child, or is involved in sexual violence of any kind, whether on or off duty. The paper discusses the procedural due process issue, substantive due process issues, and equal protection issues of including an enhanced penalty when a police officer engages in sexual conduct with an individual involved in sexual violence. The work also considers the moral authority of the Model Penal Code as well as public welfare matters when a police officer participates in such behavior. The article concludes by recommending that the Model Penal Code should specifically make it an enhanced penalty or offense when a law enforcement officer engages in sexual conduct while on duty with any individual, including a child, or is involved in sexual violence of any kind, whether on or off duty. The conclusion seems appropriate given that police officers hold the public trust when performing their duties.

Abstract: The Model Penal Code (“MPC”) revision of the traditional mens rea provisions has been almost uniformly recognized as an immense success. The MPC framework has been extremely influential: it has been adopted explicitly in more than a half of American jurisdictions, and it often guides judicial interpretation of mens rea in the remaining jurisdictions as well. However, the MPC may have lost some important insights in departing from the traditional mens rea criteria. In this paper, I suggest that, in its strive for simplification, rationality, and utility, the MPC has sacrificed some of the moral complexity of the traditional, common-law mens rea categories. Specifically, I argue that the common-law category of malice is doctrinally important and its abandonment affects the fairness and coherence of the entire body of criminal law.

Abstract: For all of the attention given to President Trump’s rhetoric characterizing Western Hemisphere immigrants in harsh and degrading criminal terms, little mainstream attention has been given to the real administration policies affecting actual criminal immigrants. While the Department of Justice is charged with administering removal proceedings, via its internal administrative immigration courts and the Board of Immigration Appeals (“BIA”), it also defends those outcomes in the U.S. Courts of Appeals. Thus, it is instructive to comprehensively examine the administration’s actions through both its agency precedent and its litigation in the courts. Florida-based litigation provides a useful vantage point for consideration of contemporary application of the broad criminal grounds of “inadmissibility” and “deportability” enumerated in the Immigration and Nationality Act. (“INA”). This article serves to first catalogue and critique the Trump Attorney Generals’ internal achievements – distinguishing the BIA’s “independent” published decisions from those BIA cases certified by the Attorney General to decide himself - that seek to clarify (and generally amplify) the immigration consequence of criminal convictions. It will then draw out the Florida-specific roots of some of those decisions and explore the Florida and Eleventh Circuit implications of the remainder. The purpose of this article is both to canvas these cases, in service of the Florida bench and bar, and also to discover any philosophical consistency – or not – in the Department of Justice positions. Philosophically, a conservative administration might predictably advocate for a harsher interpretation of the removal statute. However, conservatives would also predictably argue for a strict reading of a statute, including in the use of the “categorical approach” in modern criminal and immigration law, which has evolved to require rigid comparison of federal and state criminal definitions of offenses in order for those offenses to trigger sentencing or deportation consequences. Paradoxically, close adherence to the “categorical approach” sometimes leads to generous outcomes for the immigrants. The Florida criminal code strays far from the model penal code; consequently, it provides ample fodder for a disproportionate amount of litigation and, consequently, for this article. The author has extensively written on, and litigated – both successfully and unsuccessfully, and in pending matters – regarding these issues, as both primary counsel and for amici curiae. This article develops the interconnectedness of the above two topics, in order to comprehensively discuss the immigration consequences of Florida crimes, and to attempt to reconcile 1) recent tracks of administrative and appellate jurisprudence under the current administration, with 2) the collision course of the “categorical approach” with the interpretive principles of Chevron. In doing so, the article makes recommendations for a more consistently principled, predictable, and uniform intersection of the state criminal statutes and the Immigration and Nationality Act.

Abstract: Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior.