干旱区生态环境知识资源中心(Arid): LEX MITIOR: CONVERSE OF EX POST FACTO AND WINDOW INTO CRIMINAL DESERT

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DOI	10.1525/nclr.2015.18.2.167
	LEX MITIOR: CONVERSE OF EX POST FACTO AND WINDOW INTO CRIMINAL DESERT
	Westen, Peter
通讯作者	Westen, P
来源期刊	NEW CRIMINAL LAW REVIEW
ISSN	1933-4192
EISSN	1933-4206
出版年	2015
卷号	18 期号:2 页码:167-213
英文摘要	In 2009, New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence-death-that state officials had been lauded in Europe for outlawing three years earlier. A prosecution like New Mexico's could never occur in Europe, and not merely because Europe has long outlawed the death penalty. It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as "lex mitior'' ("the milder law''). The latter doctrine is a counterpart to the ex post facto prohibition. Both doctrines concern retroactivity in criminal law, but they are the converse of one another. The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely. In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishment for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment. He concludes that, although doing so can be morally justified under limited circumstances, typically it is not-a conclusion that bears upon lex mitior's proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.
英文关键词	desert ex post facto lex mitior savings clause
类型	Article
语种	英语
收录类别	ESCI
WOS记录号	WOS:000442639100001
WOS类目	Law
WOS研究方向	Government & Law
资源类型	期刊论文
条目标识符	http://119.78.100.177/qdio/handle/2XILL650/331442
作者单位	[Westen, Peter] Univ Michigan, Law, Ann Arbor, MI 48109 USA
推荐引用方式 GB/T 7714	Westen, Peter. LEX MITIOR: CONVERSE OF EX POST FACTO AND WINDOW INTO CRIMINAL DESERT[J],2015,18(2):167-213.
APA	Westen, Peter.(2015).LEX MITIOR: CONVERSE OF EX POST FACTO AND WINDOW INTO CRIMINAL DESERT.NEW CRIMINAL LAW REVIEW,18(2),167-213.
MLA	Westen, Peter."LEX MITIOR: CONVERSE OF EX POST FACTO AND WINDOW INTO CRIMINAL DESERT".NEW CRIMINAL LAW REVIEW 18.2(2015):167-213.

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