NCJ Number
61682
Journal
University of Colorado Law Review Volume: 50 Issue: 1 Dated: (FALL 1978) Pages: 1-27
Date Published
1979
Length
27 pages
Annotation
CRIMINAL LAW MAKES SENSE IF IT IS CONCEIVED AS A SYSTEM OF MEANING THAT OPERATES BY BLAMING RATHER THAN A BUREAUCRATIC SYSTEM DESIGNED TO ACHIEVE CERTAIN STATED GOALS.
Abstract
THE SOCIAL AND INTELLECTUAL RELATIONS AFFIRMED AND ENACTED BY BLAMING ARE AN IMPORTANT PART OF THE PROCESS BY WHICH SELF AND COMMUNITY ARE DEFINED. CRIMINAL PUNISHMENT SHOULD BE BASED UPON BLAMEWORTHINESS ONLY AND THE DETERMINATION OF WHAT IS BLAMABLE IS THE TASK FOR THE LEGISLATURE. CRIMINAL LAW SHOULD USE A COMMONLY UNDERSTOOD LANGUAGE OF BLAME. ONLY THEN WILL IT MAKE SENSE TO THE DEFENDANT, THE VICTIM, AND THE PUBLIC. THE JURY SHOULD BE RETAINED, SINCE A PROPERLY INSTRUCTED COMMUNITY OF LAYMEN IS COMPETENT AT THE PRACTICE OF BLAMING WHICH LIES AT THE CENTER OF THE CRIMINAL PROCESS. THE INSANITY DEFENSE SHOULD ALSO BE RETAINED TO ALLOW THE JURY TO GIVE DIFFERENT TREATMENT TO THOSE WHO CANNOT BE BLAMED FOR WHAT THEY DID. DETERRENCE SHOULD NOT BE A GOAL OF PUNISHMENT. CRIMINAL LAW CONCERNS ITSELF ONLY WITH VIOLATION, AND THESE VIOLATIONS SHOULD BE PUNISHED AS BLAME REQUIRES AND NEVER FOR EXEMPLARY OR DETERRENT REASONS. BLAMING IS A WAY IN WHICH THE COMMUNITY EXTENDS ITS SYMPATHY IN TWO WAYS INSISTING UPON THE EQUAL WORTH AND HUMANITY OF EACH MEMBER AGAINST THOSE WHO ARROGATE TO THEMSELVES WHAT THEY SHOULD NOT. IT IMPOSES NO FORFEITURE AND MAKES NO USE OF THE DEFENDANT BUT PUNISHES HIM TO TEACH HIM THAT WE ALL LIVE TOGETHER. FOOTNOTES ARE PROVIDED. (MJW)