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What is Wrong about the "Criminal Mind"?

Brooks, Thom

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Abstract

Retributivists argue for a strong link between a criminal’s mind-set at the time of an offence and our community’s response through punishment. This view claims that punishment can be justified depending on the possession of a criminal mind which can be affected by factors that may affect culpability, such as mitigating factors. Retributivism is a powerful influence on our sentencing practices reflected in policy. This article argues it is based on a mistake about what makes the criminal mind relevant for punishment. It will be argued that a currently popular view of retribution endorsed by Feinberg and Duff – ‘retributivist expressivism’ – incorrectly link punishment to a criminal’s possession of moral responsibility. This is a problem because its absence is no defence to strict liability offences, the largest subset of crimes. It is not a crime’s threat or harm to morals that is most salient, but instead its threat or harm to our rights.

Journal Article Type Article
Online Publication Date Jul 16, 2014
Publication Date Jul 16, 2014
Deposit Date Jun 12, 2014
Publicly Available Date Jun 19, 2014
Journal Northern Ireland Legal Quarterly
Print ISSN 0029-3105
Publisher School of Law
Peer Reviewed Peer Reviewed
Volume 65
Issue 2
Pages 141-151
Public URL https://durham-repository.worktribe.com/output/1425448
Publisher URL http://www.qub.ac.uk/schools/SchoolofLaw/Research/NorthernIrelandLegalQuarterly/

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