Excessive Punishment Research Articles

The Informed Jury

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment. One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant. This principle of jury ignorance is a profound mistake. It is unmoored from history and the core function of the jury to authorize punishment. Worse, it exacerbates the criminal legal system’s predilection for excessive severity. This Article offers and defends a proposal to replace ignorant juries with informed ones, by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction. Informed juries would change the dynamics of criminal justice for the better. In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust. But more importantly, informed juries would provide systemic benefits. Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity. In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right.

Bentham: Punishment and the Utilitarian Use of Persons as Means

One of the main barriers against a Utilitarian justification of punishment is a widespread criticism that if punishment is evil justified by the good it can achieve, then the state could use persons as a means to an end in pursuing this good. This opens the door, at a theoretical level, for the potential punishment of innocents, disproportionate punishment and failure to respect persons as rational and responsible agents. Further, critics argue that any considerations of security or utility guard against the perceived risks contingently, without intrinsic commitment to respecting persons as ends in themselves. This article addresses the criticism fundamentally by returning to Bentham’s original writings and demonstrating that a principle of equality is embedded in the greatest happiness as an end of government. The principle of equality can theoretically be developed using the tools of Bentham’s political theory, including his commitments to democracy, to the elimination of pain and to the differentiation between real and fictitious entities, to ensure that a Utilitarian theory of punishment, as part of its premise, would be constrained from using persons as mere means. Further, building on the equality of happiness, the article proposes an individualistic justification of punishment that responds to the traditional accusations of innocents’ punishment and excessive punishment, and ensures the respect of persons as rational and responsible agents.

A Pernicious Gang: Ōshio Chūsai and the Prosecution of Heretics in Late Tokugawa Japan

A Pernicious GangŌshio Chūsai and the Prosecution of Heretics in Late Tokugawa Japan James McMullen Christian Sorcerers on Trial: Records of the 1827 Osaka Incident. Translated and with an introduction by Miyazaki Fumiko, Kate Wildman Nakai, and Mark Teeuwen. Columbia University Press, 2020. 408 pages. Hardcover, $140.00/£108.00; softcover, $35.00/£28.00. Since the time of Socrates, trials on capital charges have held a compelling historical and human interest. Their poignancy increases when the voices of the accused have been recorded verbatim or when the evidence was extracted under duress or torture. A sympathetic response is also evoked where judicial procedures, though acceptable in their age, were used for apparently ulterior ends and flout what modern humanist sensibilities would see as moral fairness. Examples may be political, as in the case of Anne Boleyn, or religious, as in the Spanish Inquisition. Another case, the notorious East Anglian witch-hunt led by Matthew Hopkins from 1645, is suggested to have had pecuniary as well as sectarian motives.1 Christian Sorcerers on Trial treats an analogous case from early modern Japanese history—an exhaustively documented trial that even at the time aroused questions as to the justice of its convictions. From 1827, a group of commoner men and women was tried by local Osaka agents of the Tokugawa military government for the alleged [End Page 117] crime of practicing Christianity. To be party to this “evil teaching” had been a capital offense since the seventeenth century, but, as the editors and translators of this excellent book point out in their introduction, sentencing had been in abeyance for over a century. This case is distinguished by the thoroughness of the investigation, the rigor of the prosecution, and the preservation of comprehensive records of the proceedings. It also holds a special fascination thanks to its leading prosecutor, who was credited at the time for its success but who remains a controversial figure in Japanese history: a decade after the trial, Ōshio Chūsai 大塩中斎 (Heihachirō 平八郎; 1793– 1837), a well-known Neo-Confucian scholar and activist adhering to the late-Ming school of Wang Yangming 王陽明 (1472–1528), would go on to lead a suicidal insurrection against the authority of the same administration on whose behalf he had earlier proudly claimed to administer justice.2 The principal theme of this review, then, is Ōshio’s role in the judicial proceedings from 1827 and particularly the idiosyncratic Confucian thinking that informed his approach. A brief epilogue addresses the apparent volte-face between Ōshio the ruthless implementer of shogunal laws of the late 1820s and Ōshio the rebel. Christian Sorcerers will be eagerly read by historians of Japan and scholars of comparative legal history, but should also have a much wider appeal. It is above all the moving story of a group of people by no means evil who became subject to a ruthless and, to modern sensibility, excessive punishment for relatively minor offenses. The book meticulously details the historical background to the case in the restless city of Osaka and its hinterland and, more marginally, the ancient capital Kyoto. It describes the well-established institutional procedures of the Tokugawa legal system and provides highly readable translations of the oral testimonies of the accused. This somber, dramatic, and dispassionate telling of the crushing exercise of power on defenseless individuals will likely rouse disquiet in modern readers, recounting as it does the involvement of the highest court in the land in the lives of disprivileged and largely inoffensive people. The seemingly effortless mastery of technical detail with which Christian Sorcerers tells the story confers a certain grandeur on the book. Its glimpses of the lives of the accused give a vivid sense of the complex, sophisticated, and—despite the criticism of contemporary moralists—predominantly law-abiding character of urban society in Japan on the verge of its self-conscious Western modernization. There is already a modern feeling to this urban world of rented accommodation, relative freedom of movement, and restaurant entertainment. This was a wealth-conscious society in which family connections played a major part and a competitive scene in which women generally and middle-aged women in particular were more influential than conventionally...

Setting Slavery’s Limits: Physical Confrontations in Antebellum Virginia, 1801–1860 by Christopher H. Bouton

Reviewed by: Setting Slavery’s Limits: Physical Confrontations in Antebellum Virginia, 1801–1860 by Christopher H. Bouton Sergio Lussana Setting Slavery’s Limits: Physical Confrontations in Antebellum Virginia, 1801–1860. By Christopher H. Bouton. New Studies in Southern History. (Lanham, Md., and other cities: Lexington Books, 2019. Pp. xxvi, 178. $90.00, ISBN 978-1-4985-7945-2.) In his new book, Christopher H. Bouton examines physical confrontations between slaveholders and enslaved people in antebellum Virginia. Scrutinizing a wealth of slave narratives, plantation records, and trial transcripts, the book documents the violent resistance of enslaved people to their dehumanizing circumstances. The slaves in Bouton’s study did not violently rebel to claim their freedom; instead, they struck out in defiance or exasperation, to protect their honor, to reclaim their masculinity, and to defend their femininity. These acts did little to ultimately change the conditions of slavery for enslaved people; however, such physical confrontation “provided enslaved people with hope against a system of oppression designed to destroy their humanity” (p. 156). Bouton examines the circumstances that provoked slaves to resist physically. He argues that the enslaved were often motivated by a failure of slaveholders to live up to their paternalistic obligations. When slaveholders employed excessive punishment, provided inadequate food, or denied slaves the right to visit family members, slaves responded violently. Bouton draws attention to the gendered dynamics of such resistance. For enslaved men, violent resistance was a vital way they could assert their masculinity. Violence was a hallmark of manhood in the antebellum South, crossing racial and class lines. Bouton argues that enslaved men who fought their oppressors “won respect and admiration” from fellow slaves (p. 41). Enslaved men fought to protect their families from punishment and to avenge the sexual abuse and whippings of family members. Enslaved women could not always rely on their husbands for protection. Bouton documents examples of women violently resisting their sexual exploitation by slaveholding men. He also documents examples of how enslaved female domestic workers suffered at the hands of cruel mistresses. These domestics struck out, in protest of brutal punishment and excessive workloads, against the mistress and the ideology of the southern household. However, white slaveholders rationalized this violence by interpreting it as evidence of the racial inferiority and brutish nature of enslaved people. Bouton ends with a discussion of three case studies, arguing that when physical confrontations threatened white supremacy, white Virginians did not [End Page 120] hesitate to take matters into their own hands and operate outside the law to protect the slaveholding hierarchy. For example, whites formed a lynch mob and murdered a Black man whose death sentence had been commuted to transportation by the governor. Some of the most interesting stories in this study come from Bouton’s sensitive and careful examination of Virginia criminal slave trial transcripts. This methodological approach is useful because it gives agency to enslaved people—particularly women—and highlights their efforts to resist. For example, we learn of enslaved women such as Peggy, who, in response to repeated efforts by her master to rape her, broke into his house with the assistance of other slaves, beat him to death, and set the house on fire. Some arguments of this study feel familiar in places—for example, the idea that some enslaved men equated violent resistance with an assertion of masculinity. I wondered whether more attention could have been paid toward regional variations within Virginia, particularly in the divisions between eastern and western Virginia—mentioned in the final chapter—and to what extent the nature of physical confrontations changed over time in Virginia from 1801 to 1860. Setting Slavery’s Limits: Physical Confrontations in Antebellum Virginia, 1801–1860 is an extremely well-written and well-researched book. The discussions are clear, the work is logically presented, and the case studies are intriguing. Sergio Lussana Nottingham Trent University Copyright © 2021 The Southern Historical Association

The War on Drugs: Moral Panic and Excessive Sentences

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs. Responding to that panic, legislators have authorized severe sentences for drug offenses. By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule. Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic. For example, it eroded Fourth Amendment protections during the War on Drugs. Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs. This article examines whether it is time for the Supreme Court to rethink its precedent upholding extremely long sentences for drug crimes. In 1983, in Solem v. Helm, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to terms of imprisonment. There, it found the imposition of a true-life sentence imposed on a repeat offender to be grossly disproportionate to the gravity of the defendant’s offense. Whatever hope Solem created that courts might limit excessive sentences proved to be false. Two Supreme Court cases dealing with drug sentences, bracketing Solem, demonstrate the Court’s unwillingness to override legislatures’ discretion in imposing sentences. In 1982, the Court upheld a 40-year term of imprisonment imposed on an offender who possessed less than nine ounces of marijuana. In 1991, the Court upheld a true-life sentence imposed on an offender who possessed 672 grams of cocaine. The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage. Since the height of the War on Drugs, Americans have changed their views about drugs. Significant majorities of Americans favor legalization of marijuana for medical and recreational use. Many Americans favor a wholesale rethinking of drug policy. Despite studies in the 1950s and 1960s, demonstrating beneficial use of drugs like LSD and psilocybin, Congress yielded to moral panic and included them in Schedule I when it enacted the Controlled Substances Act of 1970. Efforts are afoot at the state level to legalize the study of and to decriminalize the use of those and other drugs. This article argues that the Court should rethink its Eighth Amendment caselaw upholding severe drug sentences. The Court’s Eighth Amendment caselaw balances the severity of punishment against the gravity of an offense. In turn, the gravity of an offense turns on its social harm and the culpability of the offender. The Court upheld extreme drug sentences based on the view that drugs were a national scourge. Moral panic led it to overstate the social harm and the culpability of drug offenders. Scientifically based examination of drugs and drug policy should compel the Court to rethink its excessive punishment caselaw because the balance between severity of punishment and the gravity of drug offenses looks different when one has a better understanding of true costs and benefits of drug use.

Policy considerations to achieve practical ethics: closing the gap between ethical theory and practic.

Social and professional behaviors are driven by extrinsic as well as intrinsic factors including executive rules and regulations enacted by extrinsic agents through coercion, police force and penalties. Despite their effectiveness, these mechanisms undermine the fact that ethics is an intrinsic human quality. The present study seeks strategies to apply extrinsic coercion as an incentive to direct ethics as an intrinsic value. Ethical behaviors driven by intrinsic motivations are more permanent and less costly. Legal force can either strengthen or weaken intrinsic requirements. Extrinsic conditions such as considering the interests, attitudes and preferences of others, involving people in the regulation and execution of law, justification of law, avoiding excessive punishment or rewards, and indirect support of ethics by establishing the appropriate social context can help boost intrinsic requirements in individuals. Ethics will not be practically established unless we harness individuals’ ‘willingness to act’ as an essential determinant for ethical behavior. This requires adoption of a more psychological approach to ethics. If this aspect of ethical behavior is considered in regulations and executive processes, extrinsic forces can strengthen intrinsic requirements and spread ethics.

Defending core values: Human rights and the extradition of fugitives

Are states willing to overlook human rights violations to reap the fruits of international cooperation? Existing research suggests that this is often the case: security, diplomatic, or commercial gains may trump human rights abuse by partners. We argue, however, that criminal-justice cooperation might be obstructed when it undermines core values of individual freedoms and human rights, since the breach of these values exposes the cooperating state to domestic political resistance and backlash. To test our argument, we examine extradition: a critical tool for enforcing criminal laws across borders, but one that potentially threatens the rights of surrendered persons, who could face physical abuse, unfair trial, or excessive punishment by the foreign legal system. We find support for our theoretical expectation through statistical analysis of the surrender of fugitives within the European Union as well as surrenders to the United States: greater respect for human rights correlates with the surrender of fewer persons. A case study of Britain confirms that human rights concerns may affect the willingness to extradite. Our findings have important implications for debates on the relationship between human rights and foreign policy as well as the fight against transnational crime.

Defending Core Values: Human Rights and the Extradition of Fugitives

Are states willing to overlook human rights violations to reap the fruits of international cooperation? Existing research suggests that this is often the case: Security, diplomatic, or commercial gains may trump human rights abuse by partners. We argue, however, that criminal-justice cooperation might be obstructed when it undermines core values of individual freedoms and human rights, since the breach of these values exposes the cooperating state to domestic political resistance and backlash. To test our argument, we examine extradition: a critical tool for enforcing criminal laws across borders, but one that potentially threatens the rights of surrendered persons, who could face physical abuse, unfair trial, or excessive punishment by the foreign legal system. We find support for our theoretical expectation through statistical analysis of the surrender of fugitives within the European Union as well as surrenders to the United States: greater respect for human rights correlates with the surrender of fewer persons. A case study of Britain confirms that human-rights concerns may affect the willingness to extradite. Our findings have important implications for debates on the relationship between human rights and foreign policy as well as the fight against transnational crime.

On Punishment and Why We Enjoy It in Fiction

The article proposes an explanation for why spectators may enjoy excessive punishment when watching fiction, even in Scandinavia where harsh punishment is roundly condemned. Excessive punishment is typically carried out by a vigilante avenger, and in fiction this character is often a fantastic character (e.g., not realistic, taking on superhuman and/or supernatural characteristics). We allow ourselves to enjoy punishment more readily when the character who punishes is clearly fictional. In The Girl with the Dragon Tattoo and Let the Right One In, fantastic elements seep into an otherwise realistic setting and allow the spectator to fully enjoy the main characters’ vigilante revenge. The theory of fictional reliefs posited here holds that this mixture of modes facilitates one of two paths to moral judgment.

Carceral violence at the intersection of madness and crime inBatman: Arkham Asylum and Batman: Arkham City

The action-adventure video games Batman: Arkham Asylum (2009) and Batman: Arkham City (2011) draw on familiar comic book narratives, themes and characters to situate players in a world of participatory violence, crime and madness. In the first game, the player-as-Batman is situated in Arkham Asylum, a high-security facility for the criminally insane and supervillains that also temporarily houses a general population of prisoners from Blackgate Penitentiary. The elision of criminality and mental illness becomes amplified in the second game with the establishment of Arkham City, a combined facility that conflates asylum and prison, completely dissolving any distinction between crime and madness. We draw on Rafter’s conceptual framework of popular criminology to seriously interrogate the representation of violence, crime and madness in these games. More than simply texts offering popular explanations for crime, the games directly implicate the player in violence enacted upon the bodies of criminals and patients alike. Violence is necessary to move the action of the game forward and evokes a range of emotional responses from players who draw from personal experience and other cultural and media representations as they navigate the game. We argue that while the game celebrates violence and the brutal conditions of incarceration, it also offers possibilities for subversive and critical readings. While working to affirm assumptions about crime and mental illness, the game also provides a visceral and visual critique of excessive punishment by the state as a source of injustice for those deemed mad or bad.

Response Retributivism: Defending the Duty to Punish

Punishment presents a problem. While we generally believe that intentionally harming others is impermissible, it is widely presumed that this problem can be overcome in the case of punishment. Nonetheless, many worry about the justification of excessive punishment, especially given the state of criminal justice today. This paper offers a moderate retributive justification of punishment that avoids many of the classic problems associated with retributive theories, while retaining their intuitively compelling answer to the problem of punishment. The response-retributive theory proposed restructures traditional retributive theories: rather than relying on offender-centric reasons for punishment, response retributivism offers a punisher-centric justification, which takes the role of the punisher as well as the relations between the wrongdoer and punisher as central to the justification of punishment. The paper proposes that punishment is justified in terms of the ethics of appropriate response to wrongdoing and the duty that those in relevant relations with the wrongdoer have to dissociate from the devaluation inherent in the wrongdoer’s action. It demonstrates that on such account, while the harm and suffering involved in punishment is rightly imposed, it is not “good.” This open a space to argue for the relevance of a second duty in the context of punishment: the duty to mitigate our retributive practices. The paper demonstrates that the proposed theory offers a unitary theory of punishment, which has the resources to justify not only criminal punishment, but punishment as it is imposed across all relations: private, institutional and public. It thus further provides a springboard for grounding claims regarding requisite punishment in non-state institutions (e.g. academic institutions and sports clubs) and private contexts as well.

Quantum Gate Circuit Neural Network Optimization Algorithm Based on Performance Function

The current status of Quantum Neural Network (QNN) research is analyzed, it deeply studies the model Quantum Gate Circuit Neural Network (QGCNN) and QGCNN Learning Algorithm (QGCA). Replacing the mean square error function by using the Widrow function and the Rumelhart function, it creates two quantum neural network learning algorithms based on performance function, including Learning Algorithm of QGCNN based on the Widrow functions (WQGCA) and Learning Algorithm of QGCNN based on the Rumelhart functions (RQGCA). New algorithms overcome the inherent defects of the training result is not ideal and unrealistic, which is because the use of mean square error function training network will appear excessive punishment phenomenon. Three algorithms are trained by three data sets. Simulation Experiments on three kinds of algorithms was carried out by using these data sets in the case of the best learning rate. Research prove WQGCA and RQGCA have better pattern classification ability relative to QGCA and RQGCA has a higher classification accuracy than WQGCA.

Sind Strafen pädagogisch legitimierbar?

Is Punishment in Education Justified? The Case of Excessive Exercise If punishment is defined narrowly as authoritative deprivations for failures by retribution and reprobation, punishment and education are irreconcilable. However, punishment in this sense is rarely endorsed by teachers or youth workers. An exception is the use of excessive exercise, especially push-ups, common in competitive sports, the classroom, some sports oriented residential child care facilities and in combat training of the army. It is shown, that these are not examples of punishment in the narrow sense, but penalties, which follow a different logic and require different strategies of justification.

Decision-making impairment in anorexia nervosa: New insights into the role of age and decision-making style.

Patients with anorexia nervosa (AN) often report difficulties in decision making, which may interfere with treatment. The aim of this study was to investigate decision making in a large sample of adolescent and adult patients with AN, by using the Iowa gambling task. Participants were 611 female individuals (310 patients and 301 controls) who underwent neuropsychological and clinical assessment. Significantly poorer decision-making performance was observed in adult patients, whereas no difference emerged between affected and nonaffected adolescents. Both adolescent and adult patients were characterized by trends for higher levels of attention to losses in comparison with healthy controls. Although healthy adult women exhibited better decision-making performance than healthy adolescents, in AN, there was no improvement of decision making with age. A cluster analysis identified 2 different styles of decision making in both patients and controls: a conservative style and an impulsive style. Our study provides evidence of dysfunctional decision making in adult patients with AN and reveals an association between poor decision making and excessive punishment sensitivity in AN. The clinical and scientific implications of these findings merit further exploration.

The Abuse of Presidential Power of Pardon and the Need for Restraints

This paper examined the nature and application of presidential power of pardon in Nigeria, the United States of America, India and South Africa, amongst others. The power of pardon is an important component of executive powers, which allows the President to intervene and grant pardon, as a way of “dispensing the mercy of government” in exceptional cases where the legal system fails to deliver a morally or politically acceptable result. It exists to protect citizens against possible miscarriage of justice, occasioned by wrongful conviction or excessive punishment. Nevertheless, in recent times, this power has, in practice, become a personal prerogative of the President, a remnant of tribal kingship generally reserved for the well-heeled or well connected. The power of pardon is virtually unfettered and unchecked by formal constraints in most jurisdictions, thereby rendering it susceptible to abuse. However, in some jurisdiction there are conventionally specified criteria which guide the grant of pardon. The paper also examined some of the incidents of abuse of presidential power of pardon in Nigeria and other jurisdictions and proffered suggestions aimed at ensuring a more purposeful and beneficial exercise of the pardon power, particularly in Nigeria.

“The Lesser of Two Weevils”: British victualling organization in the long eighteenth century

The British Navy’s Victualling Board was created in 1683 after more than a century of victual attempts rife with corruption, incompetence, and inedibles; and ended in 1832 with the creation of the modern Admiralty. Historians are unanimous that the Victualling Board was an immediate and continuous improvement, daily feeding tens of thousands across the globe. On the other hand, to the modern eye, many aspects of the Victualling Board appear odd and costly—excessive inventories, unpassed accounts, charge and discharge accounting, in-house production, mutual surveillance, and excessive punishments. Here these two observations are reconciled. I argue that the Board’s organization was a clever response to pre-modern transaction cost problems; that is, the Board was designed to create compatible incentives subject to the measurement constraints of the time.

An unequal cluster-based routing scheme for multi-level heterogeneous wireless sensor networks

In wireless sensor networks (WSNs), clustering can significantly reduce energy dissipation of nodes, and also increase communication load of cluster heads. When multi-hop communication model is adopted in clustering, “energy hole” problem may occur due to unbalanced energy consumption among cluster heads. Recently, many multi-hop clustering protocols have been proposed to solve this problem. And the main way is using unequal clustering to control the size of clusters. However, many of these protocols are about homogeneous networks and few are about heterogeneous networks. In this paper, we present an unequal cluster-based routing scheme for WSNs with multi-level energy heterogeneity called UCR-H. The sensor field is partitioned into a number of equal-size rectangular units. We first calculate the number of clusters in each unit by balancing energy consumption among the cluster heads in different units. And then we find the optimal number of units by minimizing the total energy consumption of inter-cluster forwarding. Finally, the size of clusters in each unit is elaborately designed based on node’s energy level and the number of clusters in this unit. And a threshold is also designed to avoid excessive punishment to the nodes with higher energy level. Simulation results show that our scheme effectively mitigates the “energy hole” problem and achieves an obvious improvement on the network lifetime.

'Innocence' and the Guilty Mind

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, thereby ensuring that only offenders with adequate notice of the wrongfulness of their conduct face conviction. The Supreme Court’s recent decision in Elonis v. United States portends a significant, and novel, shift in mens rea doctrine by treating the potential for disproportionately severe punishment as an independent justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment involve the same objectionable feature: the imposition of morally undeserved punishment. This Article uses Elonis as a vehicle for reexamining the effectiveness of current mens rea doctrine. Even after Elonis, mens rea doctrine remains hobbled by several methodological flaws which prevent it from making moral culpability a necessary precondition for punishment. These flaws, I argue, are traceable to the doctrine’s simultaneous embrace of two irreconcilable views of the separation of powers in criminal law. The project of reading implied mens rea requirements into statutes and fleshing out incomplete legislative crime definitions necessarily assumes that courts have a lawmaking role on par with Congress. The mens rea selection methodology, however, reflects standard faithful-agent textualism. This turns out to be the doctrine’s Achilles heel because the risk of morally undeserved punishment stems primarily from poor legislative crime definition. To be truly effective, mens rea doctrine must operate outside the statutory definition of the offense. All mens rea options not clearly foreclosed by Congress -- even knowledge of criminality -- must be available wherever needed to prevent morally undeserved punishment. Until this occurs, mens rea doctrine will continue to default on its promise of preventing conviction for morally blameless conduct, not to mention the broader promise, suggested both by Elonis and criminal law tradition and theory, of precluding disproportionately severe punishment.

『色│戒』로 본 張愛玲의 親日문제

In the 40s of the 20th century, in the Shanghai City occupied by Japan, the young Novelist Eileen Chang(张爱玲) actively engaged in his work, which was very different from other literary men who were at that time or devoted themselves to pure academic studies. She did not care about politics and thought that literary creation was irrelevant to the state. However to marry -a national traitor- Hu Lancheng(胡兰成) was the act of bringing in great personal unhappiness. After Japan surrendered, she was accused with a stigma of national traitor, but this seems to be an excessive punishment. In particular, she was intensely accused of being invited to the ’Greater East Asian Literary Conference(大东亚文学者大会)’ and attending the ’Tea party on Literary Discussion(納凉會)’, but this also seems to be an overstatement, since I have never written a single line of suspicion. 24 years after she left China, 『Lust, Caution(色|戒)』 was published, but it faced again with criticism, especially in relation to the Material problem of the novel. Later, Zhang Xiguo(张系国) challenged the national traitor issue again, she resisted but this debate signaled the end of her work.

Evolving Democratic Constitutionalism

In its Eighth Amendment cases, the Supreme Court has often cited counter-majoritarian considerations as the basis for exercising judicial restraint. As a result, excessive and draconian punishments persist in the United States, with the Court being hesitant to use the Constitution to bar state punishment practices. The Court’s evolving standards of decency doctrine, however, is majoritarian. As this Article argues, the doctrinal framework of the Court alleviates the counter-majoritarian difficulty, as the Court’s applications of the Eighth Amendment mirror majoritarian practices and only strike down outlier punishments. Given the lack of justification for judicial restraint under the Eighth Amendment, the Article maps a series of possible applications of the Constitution in this area, both on a micro-level—to limit punishments in certain circumstances—and on a macro-level—to bar certain punishments altogether. In particular, the Article reveals the current ability of the Court to apply its Eighth Amendment doctrine to abolish the death penalty and juvenile life-without-parole sentences. In short, the Article demonstrates that society’s standards with respect to criminal punishments have evolved. The question remains whether the justices themselves will evolve accordingly.