Homicide Law Research Articles

Jennifer M. Neighbors. A Question of Intent: Homicide Law and Criminal Justice in Qing and Republican China.

Jennifer M. Neighbors. A Question of Intent: Homicide Law and Criminal Justice in Qing and Republican China.

The Future of Roe v. Wade: Have Recent Developments Robbed Roe of its Original Justification?

While legal scholars and Supreme Court Justices on both sides of the national abortion controversy argue that Roe v. Wade was incorrectly decided, this Article accepts the Court’s decision as a provisional holding that was based on the relevant societal, scientific, and legal records available to the Court in 1973. However, the stare decisis analysis outlined by the Court in Planned Parenthood v. Casey dictates that precedent can be overturned when a change in relevant facts robs a ruling of its original justification. If the Court agrees to hear a challenge to Roe, it will likely assess whether the relevant factual records relied upon by the Court in Roe are still responsive to present realities. In 1973, the Court in Roe held that a state’s interest in protecting life becomes compelling at fetal viability and fetuses do not have constitutional rights. The Court made these determinations because it could not find a consensus view on when life begins and it found that states were reluctant to recognize fetuses as legal persons outside of the abortion context. Today, the Court can take notice of recent scientific and legal developments: (1) an academic study found a consensus of biologists around the world (96%) agree with the biological fact that a human’s life begins at fertilization and (2) there are now eight legal contexts in which fetuses are protected as human persons under the law; today, 38 states have fetal homicide laws that recognize non-abortive killings of fetuses as homicides or murders of human persons. If the Court considers these developments, which establish fetuses as humans in fact and persons under the law, then it would likely hold that Casey’s stare decisis standard for reexamining precedent has been satisfied and Roe’s viability standard has been robbed of its original justification. Since U.S. Senators and Supreme Court Justices have held that all humans are persons within the meaning of the Fourteenth Amendment to the Constitution, these developments could also lead the Court to recognize that all humans have the constitutional right to equal protection under the law throughout their lives, from fertilization until death. Whether the Court overturns Roe and returns the abortion issue to the states, recognizes fetal rights, or uses a new justification to retain or expand abortion rights, this Article argues that the Court cannot allow our Nation to be governed by abortion jurisprudence which rests on outdated and incorrect factual records of the science of fetal development and the legal status of preborn humans.

Just What the Doctor Ordered: A New Federal Statute to Criminalize Physicians for Overprescribing Opioids

We are in a national emergency—an epidemic of opioid addiction and abuse—that has claimed the lives of more than 700,000 Americans at a cost of more than 500 billion dollars to the economy in the last twenty years. Even now, on average 130 people die every day from an opioid overdose, making it a leading cause of injury-related death in the United States. And 70 percent of those deaths involve an opioid that a doctor legally prescribed. There is a growing sense that those responsible for the epidemic—specifically doctors who overprescribe these drugs have escaped responsibility. In the last decade nation-wide, criminal charges against doctors have numbered only in the few hundred. Thus, a disparity exists between the size of the opioid epidemic and the number of people, specifically overprescribing doctors, who have been held to account for deaths resulting from prescribing these dangerously addictive drugs. This raises questions: Given the increasing number of opioid overdose deaths nationally, why are charges and convictions of doctors so rare? And why haven’t existing legal mechanisms worked to punish the improper prescribing practices and curb the epidemic so far? The problem of overprescribing opioids persists because the current law, the federal—the Controlled Substances Act—is unclear and lacks uniform application. This article examines these issues and others. It is the first article in legal scholarship to offer concrete and common-sense solutions, including one grounded in a proposed new federal criminal statute aimed directly at those doctors who knowingly violate acceptable health care norms in prescribing opioids. The novel federal homicide law proposed here will deter and punish physicians whose reckless prescription practices cause their patients’ deaths while also providing the space for those doctors engaged in legitimate pain treatment and management to use these drugs to relieve suffering.

An Argument for Diminished Culpability Manslaughter: Responding to Gaps in Victorian Homicide Law

The complexity and diversity of unlawful killings — particularly those involving mentally impaired offenders — does not fit neatly across the binary distinction of offence/defence that structures criminal law. This is demonstrated in the Australian State of Victoria, where cognitively impaired homicide offenders who fail to meet the strict remit of the mental impairment defence have no (partial) defence or offence available to them which adequately captures their levels of criminal responsibility, moral agency and culpability. This makes the sentencing of such offenders not only particularly complex but means that the only stage in which both moral and legal culpability can be considered is in mitigation. This article argues that a progressive framework is needed to permit a small minority of (mentally impaired) homicide offenders to be simultaneously inculpated and (partially) exculpated. Accordingly, we propose introducing a model of diminished culpability manslaughter in Victoria, drawing from Loughnan’s seminal reconceptualisation of ‘diminished responsibility manslaughter’ as an offence-cum-defence, which renders the diminished accused differently liable. Informed by a study of all homicide cases (n=647) sentenced in Victoria between 1 January 2000 and 31 July 2017, we argue that this model would not revoke legal capacity and would instead enhance the legitimacy and coherence of criminal law procedures, allowing a wider range of more legitimate convictions and reflective sentencing dispositions.

Homicide Law Reform in Australia: Improving Access to Defences for Women Who Kill Their Abusers

Over the past three decades, the law of homicide has been the subject of much academic debate, parliamentary review and various law reform commission reports throughout Australia. Such activity is largely a response to concerns about the availability and operation of the defences to homicide for women who kill in the context of family violence. The law in each state and territory in Australia differs and the issues with which reform bodies are grappling are complex. It is therefore not surprising that different recommendations have been made about how best to produce a more just law of homicide. This article explores some of these reviews and recommendations — particularly in New South Wales, Queensland, Victoria and Western Australia — and the reforms that have been planned and implemented. It will reveal that, despite sharing the core concern of improving the access to appropriate defences for women who kill their abusers, reform has been far from consistent across these jurisdictions.

“One guy goes to jail, two people are ready to take his spot”: Perspectives on drug-induced homicide laws among incarcerated individuals

BackgroundAs overdose deaths have increased in the United States, some lawmakers have explored punitive, “supply-side” interventions aimed at reducing the supply of fentanyl. While a rationale of seeking to protect people who use drugs is often given to justify harsh sentences for fentanyl distribution, there is no research to our knowledge on perceptions of the effect of drug-induced homicide laws among people who use drugs. MethodsWe conducted semi-structured, qualitative interviews with 40 people with opioid use disorder (OUD) who were enrolled in a medication for addiction treatment (MAT) program in a unified jail and prison system in Rhode Island on attitudes surrounding increased sentences for distribution of fentanyl, including recently enacted drug-induced homicide laws. Codes were developed using a generalized, inductive method and interviews analyzed in NVivo 12 after being coded by two coders. ResultsMost participants stated that drug-induced homicide laws would not be an effective strategy to stem the overdose crisis. We identified key themes, including discussions surrounding the autonomy of people who use drugs, widespread fentanyl prevalence as a barrier to implementation of drug-induced homicide laws, discussions of mass incarceration as ineffective for addressing substance use disorders, feelings that further criminalization could lead to violence, criminalization as a justification for interpersonal loss, and intention as meaningful to categorizing an act as homicide. ConclusionsFindings highlight the importance of centering the experiences of people with OUD in creating policies surrounding the overdose epidemic, potential unintended health consequences of drug-induced homicides laws such as deterrence from calling 911 and increased violence, and how drug-induced homicide laws may undermine advances made in expanding access to OUD treatment for people who are criminal justice-involved.

“One guy goes to jail, two people are ready to take his spot”: Perspectives on drug-induced homicide laws among incarcerated individuals

“One guy goes to jail, two people are ready to take his spot”: Perspectives on drug-induced homicide laws among incarcerated individuals

America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis

Nearing the end of its second decade, the overdose crisis in the United States continues to claim tens of thousands of lives. Despite the rhetorical emphasis on a “public health” approach, criminal law and its enforcement continue to play a central role among policy responses to this crisis. A legacy of the 1980s War on Drugs, statutory provisions that implicate drug distributors in overdose fatalities are on the books in many U.S. jurisdictions and federally. This Article articulates an interdisciplinary critique of these “drug-induced homicide” laws at a time of their increased popularity, expanding scope, and aggressive prosecution. That these policy mechanisms are deployed under the banner of overdose prevention invites a critical public health lens to their reexamination. After tracing the trajectory of the overdose crisis, this Article examines the role of drug-induced homicide laws as exemplars of U.S. drug policy’s reliance on criminal law to address problematic substance use. An empirical analysis of publicized drug-induced homicide cases documents a rapid and accelerating diffusion of prosecutions in many hard-hit jurisdictions; pronounced racial disparities in enforcement and sentencing; and broad misclassification of friends, partners, family members, and others as “dealers.” In addition to crowding out evidencebased interventions and investments, these policies and prosecutions run at direct cross-purposes to public health efforts that encourage witnesses to summon lifesaving help during overdose events. At a time of crisis, drug-induced homicide laws and prosecutions represent a false prophecy of retribution, deterrence, and incapacitation. These findings support further efforts to demobilize criminal law and criminal justice actors from responding to drug-related harms in the U.S. as elsewhere.

Provider Conscientious Refusal of Abortion, Obstetrical Emergencies, and Criminal Homicide Law

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes that confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials.

The Nature and Function of Criminal Theory

The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment;' the theory of justification and of excuse, that is, of wrongdoing and responsibility;2 the relevance of consequences to the gravity of offenses (the problem of moral luck);3 and the proper structuring of specific fields of law, notably the law of homicide, particularly at the beginning and the end of life,4 of rape,5 and of victimless offenses that result in

Pragmatism Preserved? The Challenges of Accommodating Mercy Killers in the Reformed Diminished Responsibility Plea

This article examines the operation of the reformed English diminished responsibility plea in mercy killer cases. In particular, it makes three claims. First, it predicts that—like its predecessor—the revised doctrine will be stretched, where necessary, to accommodate these offenders. This is because (i) normative arguments remain for convicting them of manslaughter instead of murder and (ii) other partial defence routes will usually be unavailable. Secondly, it contends that such pragmatism will now be facilitated by a disconnect between (i) the defence’s post-reform narrowing and (ii) its ongoing interpretive flexibility. Thirdly, given that disconnect, it suggests that this pragmatism will be problematic. Notably, it will (i) compromise the plea’s newfound coherence and (ii) exacerbate unfair labelling of mercy killers. Ultimately, and more broadly, these difficulties reinforce recent calls for further homicide law reform.

Entering the Minds of Serial Murderers: The Application of Forensic Leisure Science to Homicide Research

ABSTRACTYears ago, a small handful of leisure scholars suggested that serial murder may be a form of leisure. However, to date this possibility remains virtually unexplored. This article draws from recent research to share reflections and rich, new insights on how leisure science may provide important contributions to serial homicide researchers and law enforcement personnel. At the same time, exploring such intersections offers leisure scholars new ways of understanding familiar concepts and theories. Possibilities for future research are discussed.

The Physician-Patient Relationship in Light of Fetal Homicide Laws

After several cases in which pregnant women were forced to undergo cesarean sections under court order or where court orders were sought for cesarean sections, the medical community reaffirmed the principle of autonomy for pregnant women. Women are allowed to refuse care during pregnancy, even if that means harm to the fetus. In addition, it is inappropriate for medical personnel to seek legal assistance in forcing a woman to accept treatment. This article presents a case in which the medical community upheld the woman’s right to refuse care; however, the legal community then charged her with criminal homicide under the state’s fetal homicide law because the baby was stillborn after the patient delayed in obtaining a cesarean section. The differences between medical guidelines and state law must be addressed so that the patient’s autonomy is upheld and so that patients may be informed of all consequences, medical and otherwise, of refusing treatment.

Revenge, Punishment, and Justice in Athenian Homicide Law

Revenge, Punishment, and Justice in Athenian Homicide Law

Making Fetal Persons: Fetal Homicide, Ultrasound, and the Normative Significance of Birth

Making Fetal PersonsFetal Homicide, Ultrasound, and the Normative Significance of Birth Catherine Mills In early 2012, the then attorney general of Western Australia, Christian Porter, announced plans to introduce fetal homicide laws that would “create a new offence of causing death or grievous bodily harm to an unborn child through an unlawful assault on its mother” (Porter 2012). While well established in the United States, fetal homicide laws are only beginning to take shape in Australia.1 The proposed law would mean that if an offender assaulted a woman and thereby caused the death of the fetus she was gestating, the courts would be required to impose a sentence of life imprisonment in all but exceptional circumstances—equivalent to the penalty for murder. While the proposed fetal homicide law is said to give appropriate recognition to the grief and suffering of the woman involved—and while it may help to do that—this is certainly not all it would do.2 For it would also give existence to a new legal subject in Western Australia, that is, the “unborn child”: currently, under Western Australian law a child is only legally capable of being murdered when already external to the mother’s body. Thus, the woman’s body constitutes a kind of “natural” basis for a legal boundary—one that the proposed law transgresses and perhaps obliterates, at the same time as it purports to recognize the trauma associated with the transgression and obliteration of that boundary by another. Fetal homicide laws thus traverse difficult territory in the maternal-fetal relationship, in which actions against one person come to constitute a crime against another. Significantly, these laws are typically formulated to provide legal protection for pregnant women against the intrusions of a third party against [End Page 88] their person. However, it may be that they can also be interpreted more generally to provide legal protection for the fetus against others. So construed, such laws open up a danger for pregnant women themselves, insofar as their actions threaten the life and well-being of the fetus they carry. One recent example of the exploitation of this ambiguity in fetal homicide laws is the case of Bei Bei Shuai, a young woman of Chinese descent who faced felony charges of murder in Indiana after a failed suicide attempt resulted in the death of the thirty three week old fetus she was gestating (Pilkington 2011, 2012). If a woman’s actions against herself, leading to the death of her fetus, can be legally construed as murder, where does this leave the law on abortion? The Western Australian attorney general insisted that the proposed law would not affect laws on abortion in any way, since it would not encroach on a woman’s right to make decisions about her pregnancy (Porter 2012). But a woman’s decisional rights in regards to her pregnancy are at best an unstable dividing line; at worst, it is precisely her decision to terminate a pregnancy—that is, to intentionally bring about the death of the fetus—that substantiates a murder charge. Indeed, at the crux of the Shuai case was her suicide note, in which she apparently stated her intent to kill her fetus. This ambiguity between abortion and fetal homicide has been the topic of much discussion in legal literature, and it raises significant questions that bear further investigation. For one, it raises in a particularly pointed way questions about the moral and legal significance of birth, and the bearing it has on the status of the fetus. Birth has historically been significant in establishing personhood, but this reliance on birth is challenged by the shift to treating the fetus as a person for the purposes of some areas of the law. The further question then arises of whether that status must remain consistent across domains of the law, such as those addressed to the death of a fetus at the hands of a third party, and those on abortion. While these questions have been well canvassed in legal discussions, we might also consider the impact that technologies such as obstetric ultrasound have on notions of fetal life and personhood. Advances in medical technologies appear...

It Is Almost as If There Were a Written Script: Child Murder, Concealment of Birth, and the Unmarried Mother in Western Australia

It Is Almost as If There Were a Written Script: Child Murder, Concealment of Birth, and the Unmarried Mother in Western Australia

Proposed Reforms to Partial Defences and their Implications for Mentally Disordered Defendants

<p align="LEFT">Partial defences are special defences only available in England & Wales to defendants charged with murder. They include provocation, diminished responsibility, infanticide and killing pursuant to a suicide pact. These are known as the ‘voluntary manslaughters’ where homicide with intent otherwise sufficient for murder (‘malice aforethought’) is reduced to manslaughter because of defined mitigating circumstances. Provocation and diminished responsibility have proved most problematic and will be the focus of this article. The mitigating factors arise from abnormal mental states, and psychiatric evidence has been at the centre of disputes regarding these defences. In this journal, Kerrigan set out recent problems that have developed with provocation in case law. The degree to which mental disorder can be considered when deciding the standard of behaviour required of the defendant who pleads ‘provocation’ has fluctuated markedly in recent years. Diminished responsibility, on the other hand, has aroused concern, inter alia, over its expansive use to cover a wide range of mental conditions, and the frequency with which expert psychiatrists comment on the ‘ultimate issue’ of whether all limbs of the test are met. Both problems might be said to arise from vague terms in the statutory definition that are incompatible with contemporary psychiatric practice.</p><p align="LEFT">Following the controversial case of R v Smith (Morgan James), which permitted mental disorder a much greater effect on provocation, the United Kingdom Government asked the Law Commission to consider and report on the law and practice of the partial defences provided for by the Homicide Act 1957. This progressed to investigation into wider homicide law and a process of consultation and review which has now passed to the Ministry of Justice. This paper will outline briefly the review process before considering in greater detail the current proposals for new definitions of provocation and diminished responsibility. The Commission would like these to exist within a radically re-structured law of homicide. The implications for mentally disordered defendants and therefore expert psychiatric opinion will be considered.</p>

The Symposium in Context: Pottery from a Late Archaic House near the Athenian Agora by Kathleen M. Lynch

BOOK REVIEWS/COMPTES RENDUS 179 precisely with Ath. pol. 57 either. In his defense of the passage, Canevaro must weigh in on several issues, such as the roles of pollution and intentionality in Athenian homicide law, but he unquestioningly follows most commentators in assuming that feœgein refers to the penalty of exile rather than going on trial. Even so, he admits to not being able to explain every detail, which this reviewer found refreshingly candid. Dem. 24.149–151 offers a very lengthy version of the oath sworn by the Athenian judges, the so-called Heliastic oath. For convenience, Canevaro relies somewhat on Fränkel’s 1878 reconstruction of the oath1 and finds this version deficient both in lacking two clauses that are included by Fränkel and in including several that seem based either on Demosthenes’ argumentation elsewhere in the speech or on external sources. Previous scholars have argued for the exclusion of the same two clauses and the inclusion of some that Canevaro would exclude. On many of these issues he is probably right, but there seems to be an unjustified assumption that the judges’ oath never changed. And while Canevaro must limit himself to considerations of authenticity in the Demosthenic context, others will no doubt go on to explore more fully what such forgeries can reveal to us about hellenistic appropriations of Demosthenes’ works. This book is a formidable work of scholarship from a brilliant young scholar ably assisted by his doctoral advisor Edward Harris, who in fact is directly responsible for the analysis of the documents in Dem. 21 Against Meidias. The author reviews and illuminates innumerable issues that have been raised in the last two hundred years of scholarship (though a glance at Wentzel’s 1895 study of lexicography would not have gone amiss)2 and will no doubt prevent mistaken assumptions about the historical reliability of these legal documents for generations to come. Simon Fraser University David C. Mirhady The Symposium in Context: Pottery from a Late Archaic House near the Athenian Agora. By Kathleen M. Lynch. Princeton, New Jersey: American School of Classical Studies at Athens (Hesperia Supplement 46). 2011. Pp. xx, 377. This study catalogues and analyses the material deposited in a well in a house near the Athenian Agora. Well J 2:4 “is the first Agora well from the Late Archaic or Early Classical period for which all excavated material was saved, and thus presents an unusually complete view of an Athenian household assemblage” (1). This find offers a ripe opportunity for the kind of contextual study to which archaeology has turned in the last decades. This book demonstrates that a close and careful study of this kind may speak to questions of wide scope and great significance. After a brief introduction (Chapter One) setting out the study’s aims, Chapter Two establishes the archaeological context of the deposit. The well and house were built in the last quarter of the sixth century. Stratigraphic analysis reveals that the contents of the well consist of period of use deposits and then fill from a single depositional event 1 Max Fränkel, “Der attische Heliasteneid,” Hermes 13 (1878) 452–466. 2 G. Wentzel, “Beiträge zur Geschichte der griechischen Lexicographen,” Sitzungsberichte der Königlich-Preussische Akademie der Wissenschaften zu Berlin 26 (1895) 477–487 = Lexica Graeca Minora, ed. H. Erbse (Hildesheim 1965) 1–11. 180 PHOENIX when the well was closed. It was filled soon after 479 as part of the clean-up after the Persian destruction. Comparative analysis of the shapes and decoration of the vessels confirms that the deposit represents a domestic assemblage. Although the location of the well and the pattern of deposition show that the assemblage belonged largely to a single house, some of the material in the fill must be extraneous. The quantitative analysis presented in Chapter Three establishes what should be included in the household assemblage. A contextual analysis of the deposit reveals what we have: the contents of the china cupboard of an Athenian household ca 480, which appears to have been, as best as we can tell, of middling status. This knowledge offers in turn to shed considerable light on the historical context...

IN SEARCH OF DRAKON

This paper takes issue with two widely held views on Drakon. The first is the claim made at least as early as the fourth century BC that only the homicide laws survived the subsequent intervention of Solon; the second is the repeated assertion that Drakon's laws were uniformly harsh. It argues that more of Drakon's work survived into the Classical period, both in substance and in procedure, than the Athenians realised or admitted, and that the harshness has been exaggerated.

Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control

In October 2010, provocation was abolished as a partial defence to murder in England and Wales. Through the introduction of the Coroners and Justice Act 2009, a new partial defence of loss of control was implemented. This sought to overcome problems associated with the provocaton defence and the gendered operation of the law of homicide, particularly in relation to male‐perpetrated intimate homicides, and the inadequate response of the law to the contexts in which battered women kill. This article first provides an account of these developments, and then examines legal stakeholders' perceptions of them. Drawing from in‐depth interviews with criminal justice professionals, it considers their perceptions of the operation of the law of homicide during a period of transition, specifically considering the formulation of the new partial defence, the initial effects of its implementation, and the significant differences between the Law Commission's recommendations and the reforms implemented by the government.