�Rotten Social Background�: Should the Criminal Law Recognize by 0WZ73X


									 “Rotten Social Background”: Should
the Criminal Law Recognize a Defense
  of Severe Environment Deprivation?
           Richard Delgado
              IV. A New Defense
   An environment of extreme poverty and deprivation
    creates in individuals a propensity to commit crimes
   The criminal law does not recognize a rotten social
    background, as such, as relevant to the issue of guilt
   Two purposes that the writer discusses in this article:
    1. To analyze the legal and moral argument for a new defense of
       rotten social background
    2. To suggest possible models for such a defense
         A. The Case for a Rotten Social Background
                       (RSB) Defense
   Where extreme social and economic disadvantage demonstrably creates
    a defendant’s criminal propensity, punishment may be inappropriate
    from two perspectives:
       Because the Rotten Social Background criminal’s behavior can be defended on
        theories of justification and excuse
       Because society’s rationales for inflicting punishment are undetermined
   The defendant’s culpability: justification and excuse
       Conventional legal theory – “the law itself can provide illuminating points of
        reference for moral evaluation of illegal violence”

   Excuse asserts that although the conduct is wrongful, the actor cannot
    be blamed for it
       Focuses on the subjective blameworthiness of the actor
       The central theme of excuses is that the actor is not responsible for his or her
        actions, excuses are highly individualized and subjective.
   Asserts that conduct is not wrongful.
   Focuses on the objective quality of the act
   As Frederick Engels observed, “{e} veryone is responsible and
    yet no one is responsible.”
   The effect of justification is to condone and encourage the RSB
    defendant’s conduct, a result that may seem morally and
    prudentially wrong.
   All justification defenses are limited by two requirements:
        The action must be necessary to protect the interest at stake
        The action must be proportional to the threatened harm
   In the language of justification, then, the RSB defendant can be
    seen as acting to protect important personal interests.
   If an individual is entitled to use force to protect his or her rights
    against a representative of the society which oppresses him or
    her, he or she may still be bound by a higher moral duty to that
    person as a human being.
   The central theme of excuses is that the actor is not responsible for his or her
    actions; excuses are highly individualized and subjective.
        An excuse defense argues that a disability caused an excusing condition. There
         are four categories of excusing condition:

                1.When the conduct was not the product of the actor’s voluntary effort
                2.When the conduct is voluntary but the actor does not accurately perceive its nature
                   or consequences
                3.When the actor perceives the nature and results of his or her conduct but does not
                   see them as wrong or criminal
                4.When the actor understands the wrongfulness of his or her conduct but does not
                   have the ability to control it

   United States v. Alexander
   One objective to analyzing a rotten social backgrounds as a disability is that
    not all persons with rotten social backgrounds commit crimes.
    Fletcher – “is that admitting a defense obscures the distinction between the
    actor’s character and the circumstances affecting his or her capacity for
    choice. In Fletcher’s words, “it goes without saying that a person’s life
    experience may shape his character.” An excuse, however, “must represent a
    limited, temporal distortion of the actor’s character.”
   The rotten social background is relevant only in that it can cause an excusing
Responding to the criminal: society’s entitlement to punish

    “To say that a person deserves a certain punishment is not to say that someone is
     justified in inflicting it.”
    Retributive Theories – according to most retributive theories, punishment is inflicted
     simply because justice requires (or permits) it, whether viewed from the perspective of
     society or that of the wrongdoer.
    This theory can morally justify punishment because it focuses entirely on the just
     deserts (or rights) of the individual in his or her relation to society, rather than on any
     instrumental purposes punishment might serve.
    Utilitarian Theories – the purpose of law is to increase the total happiness of society
     and minimize the total pain.
    There are two theories of how this preventive purpose is achieved: deterrence and
    Deterrence – argues that punishment prevents crime by making an example of the
     criminal; punishment functions as a threat and warning.
    Rehabilitation – can prevent future crime by rehabilitating the offender – by finding
     and treating those personality aspects, which predispose him or her to commit crime.
    Rehabilitation assumes that offenders are “sick,” psychologically or morally, and may
     be required to undergo personality modification to regain their health.
                    Possible Models
   Excuses
              Involuntary rage
              Isolation from dominant culture
              Inability to control conduct
   Public Policy Defense
              Public policy defenses are based on the idea that crime often directly
               results from poverty and social neglect and, as such, society should take
               responsibility for it.
   Justification
              Is not an acceptable model for a new defense based on RSB.
   Mitigation of Sentence
              Evidence of RSB should be admissible during sentencing as a special
               circumstance, which made conforming to the law especially difficult.
   Destitution and neglect affect individual
    behavior and choice; they are thus highly
    relevant to issues of criminal responsibility.
   The simplest meaning of fairness in criminal
    trials is that no one should be punished without
    first having the opportunity to argue the issue of
    his or her culpability. The best reason for a
    defense acknowledges a rotten social
    background is that it is unfair to ignore it.

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