Stephen Mathis

This article critically examines the proposed use of the psychiatric distinction between delusions and extreme overvalued beliefs as a tool for distinguishing criminal insanity from (mere) violent extremism. The analysis contrasts this distinction with a wholly normative one that we designed to better fulfill the same purpose. This normative distinction, based on concepts from John Rawls’ political philosophy, highlights and depends upon a host of political considerations relevant to the ideals of the criminal justice system and the rights and freedoms fundamental to the political systems in which it is situated. These considerations challenge the psychiatric distinction between delusions and extreme overvalued beliefs, suggesting that criminal responsibility cannot be adequately explained or justified by psychiatric factors alone. The article further explores the case of criminal accountability for psychopaths and concludes that neither the psychiatric diagnosis of psychopathy nor the empirical findings that one may lack the capacity for empathy is determinative in such cases. Evaluations of criminal responsibility involve a host of other moral and political considerations, and the weight one gives to those considerations ultimately provides the basis for a legitimate determination of responsibility within the criminal law.

The issue of statelessness poses problems for the statist approach to the philosophy of immigration. Despite the fact that the statist approach claims to constrain the state’s right to exclude with human rights considerations, the arguments statists offer for the right of states to determine their own immigration policies would also justify citizenship rules that would render some children stateless. Insofar as rendering a child stateless is best characterized as a violation of human rights and insofar as some states have direct responsibility for causing such harm, the problem of non-refugee stateless children points to greater constraints than most statists accept on states’ right to determine their own rules for membership. While statists can ultimately account for the right not to be rendered stateless, recognizing these additional human rights constraints ultimately weakens the core of the statist position.

In this article I argue that the objections against hate crimes defined as separate offenses and in terms of group animus are misguided and are based upon a mistaken view of human action that does not see motives as constituent parts of complex actions. If we are going to have hate crimes legislation, there are no good formal reasons keeping us from having distinct offenses for hate crimes or from having ones defined in terms of group animus. My goal is to clear up a number of action-theoretical confusions that have led some theorists and jurists to raise objections that draw attention away from the real crux of the debate over hate crime legislation. Initially, I defend several considerations that weigh against an understanding of hate crimes legislation as being concerned exclusively or even primarily with character, belief, or motive. These considerations in turn help undercut the related concern that hate crime legislation violates free speech protections.

The punishment of criminal attempts brings to light, among others, the problem of identifying the proper criteria for determining criminal liability. Those who have taken the "orthodox" approach to criminal law theory have identified two main formal requirements for criminal liability, actus reus and mens rea. The orthodox conception of these requirements, however, is problematic for several reasons: the requirements are not distinct, they fail to accord descriptively with aspects of legal practice, and they lack adequate normative justification. In light of these deficiencies, it is important to provide a feasible reformulation of these requirements in order to address, among others, the problem of attempts. Such a reformulation of actus reus should begin by recognizing that the picture of human action as bodily movements caused by distinct mental events called "volitions" is inaccurate and theoretically unworkable. But a reformulation of actus reus cannot occur independently of mens rea: radical changes to actus reus will necessitate corresponding changes in mens rea. This is due to the considerable overlap which exists between the purviews of actus reus and of mens rea. Just as voluntariness is wrongly construed in orthodoxy as a mental element, separable from bodily movement in our assessment of action, mens rea is wrongly construed in orthodoxy as a mental event which is distinct from the action and is the locus of fault. This latter misinterpretation has led orthodox theorists to understand criminal attempts as mere "crimes of intent." But this approach to mens rea is mistaken. An acceptable reformulation of mens rea will show mens rea to be bound up closely in the concept of human action. Reformulating these requirements in this way will point to a theory of human action which integrates the mental and physical elements of action and which offers substantial advantages to criminal law theory, primarily in dealing with difficult cases. Finally, to return to the problem of attempts, this integrated approach not only explains why attempts should be held criminally liable, but it also points to better explanations for the present practice of disparate punishment for attempts and completed crimes

This essay offers a particular view of the distinction between criminal attempts and actions that could constitute “mere preparation” for the later commission of a crime, that prioritizes a proper balancing of public safety and the protection of individual liberty. Modeled after Hart's distinction between the general justifying aims and the principles of distribution of a system of punishment, this view allows a coherent way of distinguishing between attempts and mere preparation that avoids many difficulties associated with subjectivist and objectivist approaches.**