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The Decline of Innocence*

Published online by Cambridge University Press:  16 January 2009

Sanford H. Kadish
Sanford H. Kadish
Affiliation:
Professor of Law, University of California, Berkeley. Visiting Fellow, Institute of Criminology, University of Cambridge, Spring 1968.
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Extract

The criminological positivists at the turn of the century started a good deal of creative rethinking about the criminal law. Some of their proposals have gained widespread acceptance in the criminal law as we know it today. Others made no headway at all. One particular proposal, and a very fundamental one indeed, began a controversy which has ebbed and flowed regularly since. That is the proposal to eliminate from the criminal law the whole apparatus of substantive principles, or at least some of them, such as the legal insanity defence, which owe their presence to the law's traditional concern for distinguishing the guilty and the innocent in terms of their blameworthiness. The essence of the proposal is that innocence in this sense, moral innocence, if you will, should not disqualify a person from the consequences of the penal law. Moral innocence should, it is urged, give way to social dangerousness as the basis for a criminal disposition.

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Articles
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The Cambridge Law Journal , Volume 26 , Issue 2 , November 1968, pp. 273 - 290
Copyright
Copyright © Cambridge Law Journal and Contributors 1968

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References

1 See Radzinowicz, Ideology and Crime (1966), p. 56.

2 (1843) 8 Eng.Rep. 718.

2a See State v. Strasburg, 60 Wash. 106, 110 Pac. 1020 (1910)Google Scholar, especially concurring opinion at 110 Pac. at 1029, speaking of the State of Washington's elimination of the defence of legal insanity: “No defense has been so much abused and no feature of the administration of our criminal law has so shocked the law-loving and the law-abiding citizen as that of insanity, put forward not only as a shield to the poor unfortunate bereft of mind or reason, but more frequently as a cloak to hide the guilty for whose act astute and clever counsel can find neither excuse, justification, nor mitigating circumstances, either in law or in fact. It is therefore not strange that there should be found a legislative body seeking to destroy this evil and wipe out this scandal upon the administration of justice.”

3 See the Oregon statute at issue in Leland v. Oregon, 343 U.S. 790 (1952).Google Scholar

4 See, e.g., People v. Wolff, 61 Cal. 2d 795, 394 P. 2d 959 (1964).Google Scholar

5 A.L.I., Model Penal Code, Proposed Official Draft (1962), § 4.01.

6 Royal Commission on Capital Punishment, 1949–1953, Report, § 333 (Cmd. 8932, 1953).

7 Durham v. United States, 214 F. 2d 862 (1954).Google Scholar

8 See, e.g., Morris, N., “Psychiatry and the Dangerous Criminal” (1968) 41 So.Calif.L.Rev. 514Google Scholar; Wootton, Crime and the Criminal Law (1963), Chaps. 2 and 3; Hart, The Morality of the Criminal Law (1965), pp. 24–25; Weintraub, “Remarks” (1964) 37 F.R.D. 369; Halleck, Psychiatry and the Dilemmas of Crime (1967), pp. 205–229.

9 Kalven and Zeisel, The American Jury (1966), p. 330.

10 Walker, “The Mentally Abnormal Offender in the English Penal System,” The Sociological Review Monograph No. 9 (1965), 133.

11 Ibid.

12 See N. Morris, supra, note 8 at 518–519.

13 See Hart, supra, note 8.

14 See State v. Strasburg, 60 Wash. 106, 110 Pac. 1020 (1910).Google Scholar See also State v. Lang, 168 La. 958, 123 So. 639 (1929)Google Scholar; Sinclair v. State, 161 Miss. 142, 132 So. 581 (1931).Google Scholar

15 Calif. Penal Code, § 1016.

16 People v. Wells, 33 Cal. 2d 330, 202 P. 2d 53 (1949)Google Scholar; People v. Gorshen, 51 Cal. 2d 716, 333 P. 2d 492 (1959).Google Scholar

17 Louisell and Hazard, “Insanity as a Defense: The Bifurcated Trial” (1961) 49 Calif.L.Rev. 805, 830.

18 N. Morris, supra, note 8 at 524–525.

19 Robinson v. California, 370 U.S. 660 (1962).Google Scholar

20 Lambert v. California, 355 U.S. 225 (1957).Google Scholar

21 Budd v. California, 385 U.S. 909, 912–913 (1966)Google Scholar(dissenting opinion).

22 State v. Strasburg, 110 Pac. 1020, 1025 (1910).Google Scholar

22a See N. Morris, supra, note 8, at 520.

23 “The Criteria of Criminal Responsibility” (1955) 22 Univ. of Chi.L.Rev. 367, 374.Google Scholar

24 Supra, note 8, at 520.

25 Wootton, Crime and the Criminal Law (1963), Chaps. 2 and 3; Marshall, Intention—in Law and Society (1968); Campbell, “A Strict Accountability Approach to Criminal Responsibility” (Dec. 1965) 29 Fed.Prob. 33. See Ancel, Social Defense (Eng. ed. 1965); Glueck, Law and Psychiatry (1963) Chap. 4.

26 Hart, Punishment and Responsibility (1968), p. 182.

27 Id.

28 For a like-minded, but fuller, critique of the Wootton proposal see Packer, The Criminal Sanction (1968).