对刑法动机的挑战 中英文双语法学专业外文文献翻译成品

1、外文标题：The Challenge of Motive in the Criminal Law外文作者：Elaine M. Chiut文献出处：Buffalo Criminal Law Review , 2005 , 8 (2) :653-729英文3187单词，15897字符，中文5194汉字。此文档是外文翻译成品，无需调整复杂的格式哦！下载之后直接可用，方便快捷！价格不贵。The Challenge of Motive in the Criminal LawElaine M. ChiutPart I of the article joins the evolving discussion of motive in the criminal law generally. To support the overall conclusion that motive should figure more prominently in the criminal law, part I proposes several novel ideas. First, although some ot

2、her scholars are fixated with whether motive should be limited to determinations of either liability or punishment, this article proposes that decision makers should be free to consider motive when determining both. Second, part I explains that not all motives are the same. Indeed, motives such as selfdefense, insanity, and heat of passion clearly differ in terms of their provability and moral potency. While some may be more easily proven, others possess greater moral potency. Because of these c

3、ritical differences, part I of this article proposes that motives which are easily proven and possess high moral potency be part of liability determinations while motives that present proof problems or low moral potency be restricted to sentencing. Third, part I ends with a sweeping recommendation to reform the overall attitude about motive in the criminal law. Far from being irrelevant to the criminal law and unworkable, motive should be thought of as essential. The criminal law should not limi

4、t itself to consideration of a few select motives; instead, it should welcome the challenge of incorporating defendants，various motives. With the freedom of multiple forums and the guidelines of provability and moral potency, an effective criminal law built around motive can be successfully developed.Part II then turns to the simple street sale and New Yorks agency defense and the intriguing lesson they offer for considerations of motive in the criminal law. Part II begins by analyzing the chall

5、enge of defining the offenses and punishments for various participants in the simple street sale and how the agency defense was designed to address this challenge. It continues with the history of how federal courts led state courts in the adoption of the judicially created agency defense and how Congress then eliminated it by statute in adopting the distribution approach to the war on drugs. In conclusion, part II describes instances of legal inconsistency produced by the agency defense in New

6、York.As a contrast to the fiction of the agency defense, part III turns to the reality of the street drug trade. The article finally concludes in part III by taking two positions. First, the agency defense is nothing more than a poorly disguised ruse to suspend criminal liability for drug addicts who may steer and help other drug addicts in completing drug transactions on the streets. It should be abandoned in New York State. Second, a more honest and effective criminal law would allow for flexi

7、ble and explicit consideration of more motives including drug addiction. Because drug addiction may feature problems of provability and low moral potency, it is best to replace the agency defense with mandatory consideration of addiction at sentencing for now. If Americans ever achieve moral consensus on the problem of crime motivated by drug addiction, then perhaps at that future point elimination or mitigation of criminal liability may be possible.The narcotic buy and bust operation has long b

8、een a central weapon in the arsenal of law enforcement agencies fighting the war on drugs. Despite its longstanding history, jurisdictions have yet to adopt satisfactory approaches to the conundrum of how to penalize each participant in the simple street sale. Efforts such as the agency defense in New York State have largely failed because of the great tension within the criminal law of how to accommodate the motives of those defendants with whom we empathize. This tension is certainly not uniqu

9、e to narcotics sales prosecutions, but the story of the simple street sale provides a valuable glimpse at how the criminal law needs to go further in addressing the current constraints on motive. Only by significantly shifting attitudes towards motive can we hope to build a more meaningful and effective criminal law.I. The Role of Motive in the Criminal LawA. The Irrelevance MaximAs Jerome Hall so pithily stated in 1960，ahardly any part of penal law is more definitely settled than that motive is irrelevant.， Many scholars are quick to clarify that this terse maxim refers to the irrelevance of motive for determinations of liability while leaving intact its pertinence for determinations of punishment. Earnest defenders of the maxim further qualify the pithy phrase: “The orthodox doctrine holds that motive is irrelevant to criminal liability unless it is specifically made relevant as part of the definition of a crime . or unless there is

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