Document Type
Article
Publication Date
1-2015
Abstract
It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars of the criminal law, what is usually called "negative retributivism" makes the principle of responsibility a necessary but not a sufficient basis for the imposition of punishment; here, responsibility is stressed as a statement that carries its own force whether or not retributivism-based punishment follows. This responsibility is retributive in its own right; it assigns blame to the individual offender and underwrites greater stigma of criminal conviction than might be the case in a purely consequentialist legal regime.
Recommended Citation
Green, Thomas A. "Reflections on Freedom and Criminal Responsibility in Late Twentieth Century American Legal Thought." M. C. Hodnefield, co-author. Am. J. Legal Hist. 55, no. 1 (2015): 1-33.