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LectureforSept10-12PartII1.pptxSocial Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
- Defendants are treated as either pathetic or helpless
- Society is believed to be responsible
- Must rectify or remedy the harms caused by discrimination and racism
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
- criminal law (and criminal defenses) superficially address the problems within society, but should it also allow for the proliferation of new, technical defenses?
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
- Written laws become infinitely more numerous
- There is little restraint on the quantity of new laws
- The legislature cannot regulate citizen’s beliefs about race (or can it?)
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
- Does a focus on group status fail to target the individual offender?
- the law should be individualistic
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
- Is the criminal law regarding “bad” behavior when it permits the use of race and culture-based defenses
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
The insanity defense, for example, provides a tempting way to accommodate cultural factors within the bounds of established doctrine. But for a number of reasons, the insanity defense would frequently produce a less desirable outcome than a cultural defense
the insanity tests that are currently applied require that the proscribed conduct stem from a mental disorder. In most cultural defense cases, the defendant would qualify as insane only under a strained definition of mental disease, which courts are unlikely to accept.
a judgment of insanity, like a conviction, is an affront to the dignity of the accused because it condemns conduct deemed acceptable by her culture. Indeed, being labeled a lunatic may be more degrading than being branded a criminal.
whereas criminal incarceration has a fixed term, civil commitment following a determination of insanity can, in practice, be indefinite.
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
arguing that the defendant lacked legal intent because of cultural factors is unlikely to prove as effective as a substantive cultural defense.
In most cases in which a cultural defense could be raised, there is little question that the defendant actually intended to commit the act for which she is being tried.
Even if it could be shown that the defendants' cultural values differed significantly from those of the majority, it would be difficult to argue that the defendants did not intend to kill a human being.
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
The absence of procedural safeguards and guidelines leads to inconsistency in the treatment of cultural factors from case to case.
The combination of covertness and unfettered discretion is a particularly troubling method for dealing with cultural factors because this combination has historically presented an opportunity for officials to exercise prejudice against cultural minorities.
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
unlike excuses such as the cultural defense, these procedures do not subject cultural factors to scrutiny before a public forum, thus making it more difficult for the legal system to evaluate how justly and effectively it is dealing with cultural factors.
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
- A society's socializing institutions not only make its members aware of its norms, but also instill in its people a sense that they are morally obligated to abide by their culture's norms. Thus, persons raised in other cultures, who are subject to influences that inculcated in them a different set of norms, will likely feel morally obligated to follow those norms.
- Once norms have acquired this moral dimension, conformity with conflicting laws becomes more difficult. For this reason, a person's cultural background represents a relevant individual factor that a just legal system should take into account.
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
The cultural defense is integral to the United States' commitment to pluralism: it helps maintain a diversity of cultural identities by preserving important ethnic values.
The cultural values that conflict with criminal laws are often among the most fundamental, involving questions of life, death, and morality.
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
Punishing the defendant in cultural defense cases will serve as an effective general deterrent in only one of the two categories of culturally related crimes.
1. punishing the defendant may serve to instruct other members of her culture of the law, and thus may advance the goal of general deterrence. In such cases, however, punishment may not be necessary to accomplish this educational function.
Social Engineering
Are race and culture-based defenses nothing more than a failed attempt at social engineering?
In the other category of culturally related crimes -- those motivated by a sense of moral and social compulsion -- punishing the defendant may only marginally deter others in her culture whose actions are similarly motivated.
To the extent that extreme acts induced by adherence to cultural mores, such as oyako-shinju (Fumiko Kimura), are relatively rare, the threat to social order, and thus the need for deterrence, becomes less pressing.
Social Engineering
Fumiko Kimura
The Los Angeles district attorney, confronted with over 25,000 signatures gathered by the Japanese community requesting clemency for Kimura and explaining the role of oyako-shinju in Japanese culture, negotiated a plea bargain with her in which she agreed to plead to reduced charges of voluntary manslaughter.
At sentencing, she was given one year in prison (which she had already served) and five years probation; she walked out of the courtroom a free woman.
Social Engineering
Kimura never denied that she committed the act of drowning her two children. Nor did she argue that she intended to commit this act. Rather, she sought admitted into evidence the Japanese custom of oyako-shinju in an effort to demonstrate that the prevailing forces of her enculturation reasonably swayed her decision to act. In other words, she claimed that her motive should be considered in assessing her liability.
Social Engineering
She contended that her actions were not those of a woman who killed out of hatred or desire for gain, but rather those of a compassionate and caring mother. Therefore, the argument continues, she should not be affixed the same moral blame as would be placed on one who killed out of spite and desire.
Question: Was this a reasonable outcome?
Social Engineering
Are the traditional goals of justice promoted through the use of “culture-based” defenses
- Retribution: We attempt to proportionalize the punishment to the moral blameworthiness of the offense. Inasmuch as law derives its legitimacy from underpinnings in morality, we use morality as the guiding principle in setting the quantum of punishment.
Ex: People v. Aphaylath, a Laotian man stabbed his wife when she received a telephone call from another man. in Laotian culture a man's wife who is called upon by another man has committed a sin akin to adultery and, as a result, has brought great dishonor to her husband.
The cultural defense, thus, is necessary if we are to know all of the information required to place the correct amount of punishment on the man at trial.
Social Engineering
- Deterrence: neither specific nor general deterrence would be well served by disallowing the cultural defense. Specific deterrence is needless in these sorts of crimes.
Social Engineering
- Rehabilitation: denial of the cultural defense would reveal an underlying fear of beliefs different from our own, a national ethnocentrism not consonant with the traditional American values of tolerance, curiosity for the unknown, and willingness to experiment with new ideas.
