Abstract
Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions for further study (by myself and others) regarding the historical behavior of the jury, the jury’s role in reinforcing notions of political liberty and free will, and, primarily, how scholarly conceptions of the jury’s role and behavior have informed elite theory regarding the justifications for imposing criminal responsibility.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
It is this connection that defines the terrain of my future work on criminal responsibility and its history. In order to make this connection at a number of points over the period 1200–2000, I shall, in effect, be bringing the jury—which was the focus of my earlier book, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Green 1985)—forward in time and over to the American side, while bringing criminal responsibility—the focus of my forthcoming book, Freedom and Criminal Responsibility in American Legal Thought (Green forthcoming)—back in time and over to the English side. Much of this paper is taken from an early draft of the forthcoming book, which had included an excursus on the jury from its inception in England in the early-thirteenth century through to the twentieth century United States, the latter period being the subject of the book itself. I removed the full excursus from later drafts of the book, where I have little to say about the jury by way of continuous narrative, but instead refer to the jury in numerous places where legal scholars brought it into view in their writings on responsibility. This tentative and generalizing paper revives the excursus and provides some of the missing continuous narrative. Because the paper’s text in its original form assumed that the reader had just read the main body of the American responsibility book, I have adapted the text for this setting, adding explanatory matter where necessary and posing questions relating to the theme of this symposium. I have also identified some of the dramatis personae and their perspectives in footnotes.
I use this phrase casually, but with some specificity. The phrase is itself conventional—see, e.g., H. L. A. Hart: “[I]t cannot seriously be disputed that the development of law, at all times and places, has in fact been profoundly influenced both by conventional morality and ideas of particular social groups, and also by forms of enlightened moral criticism, urged by individuals whose moral horizon has transcended the morality currently accepted” (1961, p. 181). Especially on the American side, I use the term “conventional morality” with respect to the belief that human beings possess “free will” in the robust sense of a contra-causal (or, anyway, self-initiating) power that justifies the attribution of moral and legal blame. And I employ it in this fashion mainly in writing about the critical perspective toward this “popular” view occasionally found in the work of the legal scholars I treat. Most of those scholars considered their own skeptical position on free will more “enlightened” than that embedded in conventional morality. I myself do not privilege the scholarly view in my work, but take note of it as an historical fact. Moreover, I tend to think that this particular aspect of conventional morality is something of a universal; that is, I assume that even those scholars who most adamantly rejected the conventional understanding of human behavior, and who wrote and taught in line with that rejection, nonetheless unselfconsciously hewed to the conventional view in their everyday lives.
My focus on elite views of conventional morality is worth emphasizing. My ongoing concern is historical Anglo-American thought about criminal responsibility, including thought about the jury’s role in assigning responsibility in individual cases. Thus, although the history and (inferred, often obscure) perceptions of jurors themselves inform theory and are of obvious interest, my work is not intended as a definitive depiction of the hearts and minds of jurors over time. Rather, my inquiry centers on legal authorities’ and commentators’ understandings of—and justifications for or criticisms of—historical judgments of responsibility embedded in the formal law as well as their perceptions of jury decisions arising from or reacting to the formal law.
Importantly, I use the term “free will” here somewhat loosely in reference to jury decisions that appear to recognize constraints on the individual will of the accused for which he or she should not be held fully responsible. I do not mean to suggest that jurors typically conceived of these constraints in modern or scientific/behavioral terms of the absence of “free will.” Rather, such decisions represent a range of juror perceptions and conclusions about the offender’s constrained circumstances. Most distinctively, the jury behavior that I place in this category is distinguishable from decisions that the offender was constrained due to true insanity or, at the other end of the spectrum, should not be punished (for a range of reasons), although he or she “freely” chose to commit the crime.
Nullification (and official acquiescence to the practice) existed alongside significantly higher numbers of jury convictions in especially heinous cases of homicide or theft. As I suggest in Verdict According to Conscience (1985), the reliability of jury condemnation in serious cases likely rendered jury independence (or potential independence, as it certainly was not always clear whether a verdict was the result of nullification or of the jurors’ genuine belief that inculpating evidence was lacking) less provocative from the judicial perspective, thus creating less pressing need for judicial intervention.
The many as-yet-unanswered questions about the origins of the jury’s discretion include whether the blanket capital sanction for felony was merely exhortatory from the very outset and, if so, which officials or social processes were intended to determine when the ultimate sanction would be carried out and when not. Then, when the trial jury subsequently replaced the ordeal, to what extent did crown and bench assume that the jury would exercise discretion with regard to imposition of the capital sanction? Whitman’s argument (2008) that jurors were under powerful constraint derived from theological strictures against wrongful capital conviction of the innocent might well bear relation to the last question. At the least, it presupposes authorities assumed jurors would err on the side of caution in exercising a responsibility judges were themselves loath to undertake.
Bellamy (1998) applies this idea more broadly, arguing that, from the middle ages, apparent judicial acquiescence in jury independence illustrated that juries should not be said to have nullified the law, but that judge and jury should be described as having reached consensus as to results in particular cases that fell outside legal rules as formally expressed.
There is now a substantial literature on the eighteenth century criminal trial, including a variety of perspectives on judge/jury relations. On jury composition—wealth, status, social attitudes—see Cockburn and Green (1988), esp. the essays by John Beattie, Peter King and Douglas Hay, Chaps. 8–10. See also Langbein (2003) and sources cited therein for a pioneering account of the development of adversary criminal trial.
Again, jury-based assessment of reputation and character doubtless influenced determinations of lack of—or possession of—full capacity.
Dana Rabin (2004, Chap. 3) discusses patterns of defendants’ and witnesses’ exculpatory language, noting that we are unable to determine the impact of such language in particular cases. I note eighteenth century elite commentary reflecting the view that juries sometimes seized on such ideas (Green 1985, Chap. 7). Also see below, note 30.
I have not yet undertaken systematic research on nineteenth and twentieth century English developments. Norrie (1993) and Lacey (2001), among others, have pointed to the increased juridical focus in British law on the mental element of criminal behavior from the late-eighteenth century forward. In part, this juridical move has been seen as emblematic of the concerns within an emerging capitalist order to maintain legal focus on the individual and to exclude broader social causes from the consideration of criminal responsibility. Further work is needed on how this development affected official and scholarly commentary on the appropriate role of the jury and on actual jury behavior. Other nineteenth and early-twentieth century English developments roughly parallel, while interestingly diverging from, those in the U.S. (Wiener 1990; Garland 1985).
Krauss (1998) and Nelson (2010), among others, shed retrospective light on—and describe outstanding questions concerning—the nature, official status, and exercise of the jury right in the colonial period. Howe (1939) offered a comprehensive account of the demise of the law-finding doctrine through the nineteenth century.
I am currently exploring this literature with an eye to the underlying meanings of juror recourse to sympathy or sentiment.
Hartog (1997) provides vivid examples from the mid-nineteenth century of the way lawyers played upon jurors' understanding of weakness of will or incapacity for self-control due to emotional states in unwritten-law cases. This likely occurred in other kinds of criminal cases even earlier in the century, as Susanna Blumenthal (forthcoming) shows it certainly did in a wide range of civil cases. Blumenthal’s path-breaking study suggests the need for comparative analysis of the civil and criminal contexts with regard to the nature and prevalence of ideas about legal insanity and lesser forms of mental weakness.
Speranza, an American lawyer of Italian heritage, gave lengthy consideration early in his career to the differing perspectives on free will of the American legal system and the behavioral sciences. Optimistic that some marriage of the two was eventually possible, he posited that some juries were ahead of the written law in this regard by considering the original causes of a particular crime, including social conditions or upbringing (e.g., Speranza 1903, p. 516).
White, a psychiatrist, would have preferred a panel of experts over a jury in legal insanity cases (a view shared by some other in the late-nineteenth and earlier-twentieth centuries) but, in acknowledging the jury’s constitutional role, recognized jurors’ potential for importing a more holistic view of the actor’s motivations and circumstances into otherwise overly static or artificial legal rules (e.g., White 1923, pp. 209–210). Glueck, both a behavioral scientist and a Harvard Law professor, discussed criminal responsibility in terms of its roots in group psychology, which jurors naturally employed in making judgments (Glueck 1925).
Hall’s early legal scholarship acknowledged that the community’s sense of justice could both lead and hamper legal reform (e.g., Hall 1935). Although he advocated positivist reform, he emphasized the jury’s historically central role and believed that jurors’ understandings of the causes of crime could be enlightened over time.
As a central drafter of the American Law Institute’s (ALI) Model Penal Code (formally promulgated in 1962), Columbia Law’s Herbert Wechsler fashioned a flexible version of the traditional tests for insanity. The draft section on “Mental Disease or Defect Excluding Responsibility,” which ultimately received Wechsler’s support as a matter of compromise, precluded responsibility for one who, “as a result of mental disease or defect … lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” (Model Penal Code § 4.01: Tentative draft no. 4, p. 27.)
In Durham, Bazelon (heir to the reformist tradition within consequentialism) substituted the “product of mental disease or defect” test for the M’Naghten and irresistible impulse tests in the U.S. Court of Appeals, D.C. Circuit. Under Bazelon’s test, medical experts’ testimony would not be constrained by the legal determinants of the traditional tests, but would address all symptoms that the experts deemed relevant to whether the act with which the defendant had been charged was a “product” of mental disease or defect. Wechsler deemed the product test too open-ended with respect to causation and likely to lead to over-breadth in jurors’ understanding of exculpatory conditions. In 1972 the D.C. Circuit abandoned the product test and adopted the ALI test (United States v. Brawner 1972). For discussions of Bazelon’s opinion, see Green (2010 and forthcoming).
The point I am making here is that, for Wechsler, the appropriate basis for responsibility was whether the defendant had possessed a capacity to be deterred by the law, not whether he possessed “free will.” The ALI test fell far short of this strict deterrence-based principle. It conceded that jurors would apply their own sense of justice rooted in conventional morality, but was shaped, or so Wechsler thought, in such a way that outcomes would more closely approximate those that a strict deterrability test would achieve as compared to any other test that the drafters and the ALI as a whole would accept. The “retaliatory passions” that law could not ignore would lead to results akin to those a strict deterrability test would produce, not only in insanity cases, but more generally.
Bazelon had a very different view of the relationship between responsibility and the appropriate role of the jury. His opinion, in Durham, insisted not only that jurors should hear all of the evidence that the psychiatric experts deemed relevant to the defendant’s state of mind, but also, in a kind of coda to the opinion, that it was ultimately the jury that had to resolve whether, on that evidence, the defendant possessed the free will required under the criminal law. Unsurprisingly, most contemporary commentators ignored the coda, treating it as mere formula. Although they well understood that jurors would hear a wider range of evidence, they mainly saw this in relation to what they thought either good or bad about the crux of the opinion: that it increased the psychiatrists’ sway in insanity cases, made the legal determination of insanity more “scientific.” It is risky to read back into the opinion what Bazelon said more than a decade later, but he appears to have taken the juror’s special role quite seriously. He explained that he had hoped the Durham rule would educate juries regarding more “sophisticated concepts” of free will and he made clear how limited he believed actual free will was for most offenders, given the social conditions that bore influence on their behavior (Bazelon 1976, p. 391). Bazelon’s subsequent gloss united Durham with his thinking more broadly, which extended well beyond psychiatric matters and bore fruit in his famously proposed (but never adopted) “rotten social background” test (see United States v. Alexander 1973, pp. 957–965; Delgado 1985). There is no evidence that Bazelon rejected the notion of free will as a general matter; rather, he appears to have viewed it as quite limited and especially so with respect to most criminal offenders. He well recognized how difficult it was to draw the line between free and unfree, and considered this a moral issue best played out publicly, via jury trial. Given society’s at least partial responsibility for the conditions that had much to do with criminal behavior, it was especially important for society—via the jury—to take responsibility for drawing the necessary line for each defendant after frankly confronting the fullest possible account of his state of mind and the social conditions that bore upon him.
Katz, a Chicago Law professor, affirmed the importance of ascribing/accepting criminal responsibility even as he questioned the ultimate reality of free choice, positing that “[m]an’s ultimate freedom is his capacity to assume moral responsibility” (1953, pp. 278). Szasz, a psychiatrist, criticized the integration of behavioral science and law, emphasizing that law is an entirely separate sphere, where our abilities to choose and to bear responsibility must remain central tenets in order for the legal system to carry out its functions—which included defending individual liberty and assuaging, through the jury trial process, feelings of guilt that unavoidably accompany ascriptions of responsibility (1956, 1963).
Ohio State Law professor, Warren P. Hill, embraced the notion that crime was ultimately most comparable to—and should be treated like—disease. But, for the time being, a functioning justice system was bound to honor juries’ notions of free will which, through the trial process, allowed for venting of instinctual aggression and reinforced law-abidingness. In turn, Hill suggested (in endorsing Bazelon’s opinion in Durham) jurors might learn from more expansive psychiatric testimony the vital lesson that human behavior was sufficiently complex that they should (here turning Bazelon’s view on its head) withhold judgment and leave the matter to experts (Hill 1955).
I use the term “neo-retributivism” to distinguish modern American (post-1960s) legal academics’ retributivist thought, premised on ideas about dignity, autonomy and one’s deserving to be thought about as a responsible person, from an earlier retributivism that most legal scholars (and society at large) associated with revenge. Of course, true retributivism is generally thought to have always been premised on the positive ideas that I have listed and revenge-based retributivism to be a perversion of the real thing. Some would therefore prefer that I use “retributivism” where I have used “neo-retributivism” and “faux-retributivism” where I have used “retributivism.”.
Significantly, by the end of the twentieth century—albeit continuing a trend that began rising even before 1900—the vast majority of criminal cases were resolved by guilty plea. Such admissions of guilt were accepted, for reasons of efficiency and justice, as determinative, despite the fundamental questions that might have been raised. This acceptance—or, perhaps better, acquiescence—is a matter of inference: criminal jurisprudence scholars typically did not speak to the point. And when there were objections to the guilty plea, they were usually couched in overall free-will-affirming language: the particular defendant was portrayed as unable, under the circumstances, to make a truly free decision. Criticism generally was not rooted in a determinism-based complaint that the defendant, like all humans in all circumstances, was able to think and act freely in only a conventional, but philosophically naïve (and not, in fact, true) sense. Thus, the critique of plea bargains reinforced, rather than challenged, conventional assumptions about human autonomy. Although the remaining cases actually resolved by jury (or bench) trial formed a small minority, the trial still embodied, for many legal scholars, the reigning, ultimately definitive paradigm for resolving criminal cases.
Cf., Greene and Cohen (2004), arguing that evidence of determinism from developments in cognitive neuroscience have the potential to convince the public to loosen its grasp on the notion of free will in favor of consequentialism, and Morse’s response (2008), urging that “human beings will find it almost impossible not to treat themselves as rational, intentional agents” (pp. 32–33), whatever science proves, and reiterating his conclusion that such rationality survives determinism and, at base, it is all the conventional notion of “free will” actually requires in support of desert-based responsibility/punishment.
In United States v. Dougherty (1972), the U.S. Court of Appeals, D.C. Circuit, held that defendants in criminal cases do not have a right to a “nullification instruction.” The Court conceded that jury nullification was consistent with the rule of law, but stated that its legitimacy was premised on jurors availing themselves of the power without being told they might do so—the circumstances of the case being so compelling that jurors found it impossible, morally, to convict. This was a Vietnam War protest case; the Court’s opinion mainly focused on political cases. Bazelon dissented, as he deemed a nullification instruction critical to his conception of the role of the jury (summarized above, note 21), not only in political cases but also in insanity cases and all other cases raising difficult issues of responsibility.
Bazelon invoked two forms of nullification, that I would describe as freedom-affirming and freedom-denying, without distinguishing them: for him, the jury had an ultimate moral duty to test the attribution of criminal responsibility in accordance with its conscience; different situations test conscience on differing bases, but all criminal cases put responsibility to the test. We might suppose that in most political cases nullification (via acquittal) is freedom-affirming: the jury supports, or at least doesn’t condemn, the defendant on grounds of his or her having made a (presumably) free moral decision to break the law. Freedom-denying nullification, on the other hand, occurs when the jury goes outside the law to register doubts about the defendant’s capacity to have acted freely in the first place. The nullification literature of the late-twentieth century paid little attention to differences between freedom-affirming and freedom-denying contexts. Some might think that the freedom-affirming variety more directly challenges the rule of law—because such acquittals, where the defendant is nonetheless thought to have “freely” committed each element of the offense, can be used to reject any criminal charge and thus can nullify the enforcement of state-defined crimes—but that freedom-denying cases are one-offs, more easily understood as rare exceptions for rare circumstances. Others might think that freedom-denying cases pose more of a threat because they cut too close to the bone by challenging the underlying basis of mens rea that upholds the rule of law; though rare in the eyes of the jury (and of conventional morality, more generally), such cases are grist for those elites who deny free will tout court and are skeptical about criminal responsibility, especially desert-based responsibility.
I am being no more than tentative in my comments on the relationship between neo-retributivist thought and conventional morality (as I am using that term). Much scholarship, at least since P. F. Strawson’s “Freedom and Resentment” (1961), has looked to the implications for criminal responsibility of the way most people perceive others’ actions and form moral judgments about those actions. American scholars differ in the use they make of these observations about commonplace perceptions and judgments; some seem nearly to take “is” for “ought,” others take “is” as good reason for thinking an otherwise derived “ought” all the more plausible. What interests me is the manner in which, over the long term, pervasive social conventions have “seeped up” either to official law-making (I have suggested something like this with respect to the evolution of gradation in the English law of felony during the thirteenth through eighteenth centuries) or to elite theorizing regarding criminal responsibility (one possible way of thinking about the twentieth century American experience). With respect to the latter, some scholars have, as noted, interpreted conventional morality narrowly: following Strawson, they have emphasized the conventional participant attitude toward another—whose act is understood as both intentional and undertaken by one with capacity for reasoned behavior—and have not focused on the possibility of an underlying association of such actions with contra-causal free will. Others (e.g., Weinreb (1986) and Boldt (1992)) have focused on that very possibility.
Elizabeth Kamali’s contribution to this symposium marks a major step forward (Kamali 2014).
Douglas Hay explored closely related themes in his seminal article, “Property, Authority and the Criminal Law” (1975). Focusing on the pardon in the eighteenth century, Hay noted: “The pardon allowed the bench to recognize poverty, when necessary, as an excuse, even though the law itself did not” (p. 44). Hay draws attention to the political and social features of this display of mercy (which, he argues, engendered respect for the law and deference to the ruling classes). Post-trial pardon process of course differed in vital respects from trial-stage process. Judicial acquiescence in jury verdicts that, in effect, accorded defendants extra-legal excuses can be understood in Hay’s terms—to a point; but, as he would likely agree, the dynamics of judge-jury relations and the apparent manipulation of the law by the jury, among other matters, made for quite different legal, political, and social readings. The availability, at the pardon stage, of extra-legal forms of excuse might be viewed as a forerunner of modern bifurcation of guilt assessment and sentencing. Jury recourse to such excuses at trial—with or without judicial encouragement or, at least, acquiescence—seems quite different. On the other hand, the historian might view the early-modern (and earlier) English criminal trial as a joint guilt-assessment/sentencing process, in which case post-trial pardoning (or reprieve leading to transportation) does not appear very different from trial process itself. Just what contemporaries thought about trial-based mitigation is yet another matter. There remains, at least, the possibility of jurors and outside observers conflating a sentencing phenomenon with application (or nullification) of the law at guilt assessment. Clearly, there is room for further analysis of contemporary understandings of the trial and of jury behavior with respect to the history of criminal responsibility.
References
Bazelon, D. L. (1976). The morality of the criminal law. Southern California Law Review, 49, 385–405.
Bellamy, J. G. (1998). The criminal trial in later medieval England: Felony before the courts from Edward I to the sixteenth century. Toronto: University of Toronto Press.
Boldt, R. C. (1992). The construction of responsibility in the criminal law. University of Pennsylvania Law Review, 140, 2245–2332.
Blumenthal, S. L. (forthcoming). Law and the modern mind: Consciousness and responsibility in American legal culture. Cambridge: Harvard University Press (in this issue).
Cockburn, J. S. & Green, T. A. (Eds.) (1988). Twelve good men and true: The criminal trial jury in England, 1200–1800. Princeton: Princeton University Press.
Delgado, R. (1985). ‘Rotten social background’: Should the criminal law recognize a defense of severe environmental deprivation? Law and Inequality, 3, 9–90.
Garland, D. (1985). Punishment and welfare: A history of penal strategies. Aldershot, Hants: Gower.
Glueck, S. S. (1925). Mental disorder and the criminal law: A study in medico-sociological jurisprudence. Boston: Little, Brown & Co.
Green, T. A. (1985). Verdict according to conscience: Perspectives on the English criminal trial jury, 1200–1800. Chicago: University of Chicago Press.
Green, T. A. (2010). Conventional morality and the rule of law: Freedom, responsibility, and the criminal trial jury in American legal thought, 1900–60. In D. W. Hamilton & A. L. Brophy (Eds.), Transformations in American legal history: Law, ideology, and methods—Essays in honor of Morton J. Horwitz (Vol. 2, Chap. 15). Cambridge: Harvard University Press.
Green, T. A. (forthcoming). Freedom and criminal responsibility in American legal thought. New York: Cambridge University Press (in this issue).
Greene, J., & Cohen, J. (2004). For the law, neuroscience changes nothing and everything. Philosophical Transactions of the Royal Society of London B, 359, 1775–85.
Hall, J. (1935). Theft, law and society. Boston: Little, Brown & Co.
Hart, H. L. A. (1961). The concept of law. Oxford: Clarendon Press.
Hartog, H. (1997). Lawyering, husbands’ rights, and ‘the unwritten law’ in nineteenth-century America. Journal of American History, 84, 67–96.
Hay, D. (1975). Property, authority and the criminal law. In Hay, D., et al. (Eds.), Albion’s fatal tree: Crime and society in eighteenth-century England. New York: Pantheon Books.
Hill, W. P. (1955). The psychological realism of Thurman Arnold, in Insanity and the criminal law—A critique of Durham v. United States. University of Chicago Law Review, 22, 377–396.
Howe, M. D. (1939). Juries as judges of criminal law. Harvard Law Review, 52, 582–616.
Kamali, E. P. (2014). Felonia felonice factum: Felony and intentionality in medieval England. Criminal Law and Philosophy, 8. doi: 10.1007/s11572-013-9273-2.
Katz, W. (1953). Responsibility and freedom: A difficulty in relating Christianity and law. Journal of Legal Education, 5, 269–285.
Krauss, S. D. (1998). An inquiry into the right of criminal juries to determine the law in colonial America. Journal of Criminal Law and Criminology, 89, 111–214.
Lacey, N. (2001). In search of the responsible subject: History, philosophy and criminal law theory. Modern Law Review, 64, 350–371.
Langbein, J. H. (2003). The origins of adversary criminal trial. Oxford: Oxford University Press.
Model Penal Code: Tentative draft no. 4. (1955). Philadelphia: American Law Institute.
Moore, M. S. (1985). Causation and the excuses. California Law Review, 73, 1091–1149.
Morse, S. J. (1986). Psychology, determinism and legal responsibility. In Melton, G. B. (Ed.), The law as a behavioral instrument: Vol. 33. Nebraska symposium on motivation 1985 (pp. 35–85). Lincoln, NE: University of Nebraska Press.
Morse, S. J. (1998). Excusing and the new excuse defenses: A legal and conceptual review. Crime and Justice, 23, 329–406.
Morse, S. J. (2008). Determinism and the death of folk psychology: Two challenges to responsibility from neuroscience. Minnesota Journal of Law, Science & Technology, 9, 1–36.
Nelson, W. E. (2010). The lawfinding power of colonial American juries. Ohio State Law Journal, 71, 1003–1030.
Norrie, A. (1993). Crime, reason and history: A critical introduction to criminal law. London: Weidenfeld and Nicolson.
Pound, R. (1911). Introduction to the English version. In Saleilles, R. (Ed.), The individualization of punishment (R. S. Jastrow, Trans.). Boston: Little, Brown & Co.
Pound, R. (1930). Criminal justice in America. New York: Henry Holt & Co.
Rabin, D. Y. (2004). Identity, crime, and legal responsibility in eighteenth-century England. New York: Palgrave Macmillan.
Speranza, G. C. (1903). Criminality in children. Green Bag, 15, 516–520.
Strawson, P. F. (1961). Freedom and resentment. Proceedings of the British Academy, 48, 1–25.
Szasz, T. S. (1956). Some observations on the relationship between psychiatry and the law. Archives of Neurology and Psychiatry, 75, 297–315.
Szasz, T. S. (1963). Law, liberty, and psychiatry: An inquiry into the social uses of mental health practices. New York: Macmillan.
Twain, M. (1875). A new crime. In Twain, Mark Twain’s Sketches, New and Old. Chicago: American Publishing Co (Reprinted from Buffalo Express (1870, April 16)).
Wechsler, H. (1952). The challenge of a model penal code. Harvard Law Review, 65, 1097–1133.
Wechsler, H. & Michael, J. (1937). A rationale of the law of homicide: I. Columbia Law Review, 37, 701–61.
Weinreb, L. L. (1986). Desert, punishment, and criminal responsibility. Law and Contemporary Problems, 49, 47–80.
White, W. A. (1923). Insanity and the criminal law. New York: Macmillan.
Whitman, J. Q. (2008). The origins of reasonable doubt: Theological roots of the criminal trial. New Haven: Yale University Press.
Wiener, M. J. (1990). Reconstructing the criminal: Culture, law, and policy in England, 1830–1914. Cambridge: Cambridge University Press.
Cases
Commonwealth v. Porter, 51 Mass. (10 Met.) 263 (Mass. 1846).
Durham v. United States, 214 F. 2d 862 (D.C. Cir. 1954).
United States v. Alexander, 471 F. 2d 923 (D.C. Cir. 1973).
United States v. Battiste, 24 F. Cas. 1042 (C.C.D. Mass. 1835).
United States v. Brawner, 471 F. 2d 969 (D.C. Cir. 1972).
United States v. Dougherty, 473 F. 2d 1113 (D.C. Cir. 1972).
Acknowledgments
I want to thank the participants at the University of Minnesota Law School Robina Institute workshop on “Criminal Responsibility and its History,” especially my commentators, Dan Richman and Jonathan Simon, and the conveners of the workshop (and editors of this symposium), Susanna Blumenthal and Antony Duff. Special thanks also to Elizabeth P. Kamali and Michael Lobban for insightful critiques of successive drafts of this paper and to Merrill Hodnefield for excellent research and editorial assistance.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Green, T.A. The Jury and Criminal Responsibility in Anglo-American History. Criminal Law, Philosophy 9, 423–442 (2015). https://doi.org/10.1007/s11572-013-9267-0
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-013-9267-0