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American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries. The explanations usually offered—rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies—are fundamentally incomplete. The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices. The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of Western expansion. The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three. Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970. [more]

Conceptual engineering aims to replace imprecise, misleading, or contradictory concepts with more accurate ones. Rather than asking how a concept is being used, it questions whether it is right to use it that way. It offers a new way of understanding many of our disagreements: even when we mean different things by the words we argue about, we don’t always talk past each other. Sometimes, we engage in a fundamental dispute about what these words ought to mean, and by extension, about the best way to describe reality. [more]

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The problem of outcome responsibility, in criminal law, is the problem of providing a normative foundation for criminal-law practices that make outcomes relevant to criminal liability and sentencing – sometimes (as in the law of attempts) with relevant differences between intended and negligently-risked outcomes. My talk develops a conception of agency that can provide theoreti­cal underpinning for these practices. As a first step, I defend the widely accepted view that producing an outcome (either as an in­tended or as a negligently-unlucky one) makes a difference: so long as the outcome can be imputed to the agent, it qualifies what the agent is responsible for. The object of assessment (“what D has done”) changes from “X activity” (minus the outcome) to “X activity with outcome”. Potentially much more contentious is the second step in my argument: the claim that how the outcome matters for our responsibility is affected by the question whether the outcome is the product of our intentions or whether it is the product of risks we have negli­gently created. This analysis explains many contentious features of the criminal law. However, it puts pressure on the justification for outcome-dependent crimes of negligence as such. For how can, on the assumption that we have a much less tight connection to negligently-risked outcomes than to intended ones, the criminal law’s prac­tice of making the occurrence of the outcome the linchpin for most offences of criminal negligence, be defended? [more]

Good fences make good neighbours. The “naturalistic fallacy” is a particularly solid fence. It not only claims that the normative disci­plines need not worry about facts. It would actually be a category error if they care. Although at its core the law is a normative disci­pline, it has not always been that hostile towards facts. But it used to have a rather loose attitude towards empirics. Often, any factual statement “that matters” has been accepted as a legitimate ele­ment of legal reasoning. A social scientist would likely disagree. A factual claim is not the same as empirical evidence, most im­portantly since correlation is not causation. Criminology defines itself as the social science concerned with crime and punishment. This invites a division of labour: to the extent that a normative conclusion in the area of criminal law rests on an empirical claim, it is for criminology to deliver the evidence. Yet what counts as evidence? To a relevant degree, this is not only a question of epistemology. It also is a matter of disciplinary culture. Historically, criminology defines itself as applied sociology. This historical root is a productive one. But it has led the discipline to largely ignore an im­portant source of evidence: experiments under the controlled conditions of the lab. Interestingly, in empirical legal studies, this method is much more established than in criminology, despite the fact that empirical legal studies are much more recent. The talk will explain why lab experiments could be helpful for criminology, and accordingly for the empirical grounding of criminal law, and will illustrate the power with experiments on crime and punishment. [more]