INDIVIDUALIZING CRIMINAL LAW'S JUSTICE JUDGMENTS: SHORTCOMINGS IN THE DOCTRINES OF CULPABILITY, MITIGATION, AND EXCUSE.

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    • Abstract:
      In judging an offender's culpability, initigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into accozint such things as the offender's youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndroine. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. Iii between these two clear points, however, exists a large collection of individual oil fender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account. Should our assessnient of an offender's criminal liabilitx be adjusted fur their cultural background? Their religious beliefs? Their past life experiences? The pedophilic tendencies they have always had but usually suppressed? The question of how much to indiviclualize the criminal liability judgment is not peripheral or unusual but rather common in a wide range of formal criminal law doctrines including, for example, the culpability requirements of recklessness and negligence, the mitigation of provocation and its more modern form of extreme emotional disturbance, and the excuse defenses of mistake as to justification, duress. and involuntary intoxication. Indeed, it turns out that the problem of individualizing factors is present, if often obscured, iii all criminal law doctrines of culpability, mitigation, and excuse. The Article reviews the appeal of criminal law aclhering to a purely objective standard, where the problem of the individualizing factors is sought to be avoided altogether. But the resulting stream of injustices has forced most jurisdictions to adopt a partially individualized stanclard iii some cases involving some doctrines. But this leaves the jurisdiction's criminal law in an awkward and unstable state. Without a guiding principle for determining which individualizing factors are to be taken into acCOUnt under what circumstances, the law is inevitably unprincipled and internally inconsistent. And without guidance, different decision-makers inevitably come to different conclusions in similar cases. The Article proposes a solution to the individualizing factors puzzle and a statutory codification that would provide guidance in the adjudication of the many cases in which the issue arises. [ABSTRACT FROM AUTHOR]
    • Abstract:
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