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This article examines the omission-commission binary divide that is of extant significance within Anglo-American criminal law theory and doctrine. In English law, it has been encaptured in a seminal academic debate between Williams and Ashworth, who have propagated opposite stances with respect to criminal liability for omission. American law has also witnessed significant scholarly discourse in this arena, especially on the propriety of the legal duty requirement. Leavens has proposed we abolish this requirement and the act/omission distinction altogether, examining instead the causal link between the offenders course of conduct and the prescribed harm(s). Normative and philosophical debates within American and English law and particularised concerns applicable to substantive precepts in each jurisdiction are evaluated. An array of issues are deconstructed, notably the legal duty requirement and its scope, the offences that may be committed by omission and specific concerns that Anglo-American law fails to meet fair warning and legality standardisations. There is a novel and distinctive comparative analysis of alternative perspectives on criminalisation, and creation of a dangerous situation and legal duty to rescue principles are analysed via dépecage (issue splitting) analysis across a spectrum of five bespoke compartmentalisations. Good Samaritan laws as part of optimal reform proposals on failure to rescue and failure to report harm(s) are proposed.

Although an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision makers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction; the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed); the reformed offender, who takes affirmative steps to leave criminality behind; and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.

Most criminal law defenses serve the criminal law’s goal of shielding blameless defendants from liability. Justification defenses, such as selfdefense and law enforcement authority, exculpate on the ground that the defendant’s conduct, on balance, does not violate a societal norm. Excuse defenses, such as insanity and duress, exculpate on the ground that, while the defendant may well have violated a societal norm, it was done blamelessly. That is, it is the excusing conditions, not the defendant, that is to blame. In contrast, a third group of general defenses, which have been called “non-exculpatory defenses,” bar liability in instances where the defendant may have clearly violated a societal norm with full blameworthiness yet nonetheless is exempt from criminal liability because giving the exemption advances some societal interest independent of—and in conflict with—the criminal law’s goal of imposing deserved punishment in proportion to an offender’s blameworthiness. Non-exculpatory defenses openly sacrifice doing justice in order to promote the competing non-justice interest. A wide variety of non-exculpatory defenses are commonly recognized, including, for example, statutes of limitation, executive and legislative immunities, double jeopardy, diplomatic immunity, and the doctrines of the legality principle. Each of these defenses let blameworthy offenders go free even for serious crimes because such restraint promotes or protects some non-desert societal interest. Our examination of the doctrines suggests, however, that those balances of competing interests are commonly misaligned. This occurs in some instances because societal circumstances have significantly changed since the initial formulation of the defense, without any corresponding revision of the doctrine. In other instances, there is reason to suspect that no thoughtful balancing of the competing interests ever took place, perhaps because at the time there was insufficient appreciation of the practical importance of doing justice and the societal costs of regular failures of justice. In this article, we illustrate the problem by examining the three most commonly used non-exculpatory defenses: statutes of limitation, the double jeopardy rule, and the legality principle’s rule of strict construction. We acknowledge that each of these defenses was created to promote or protect an important societal interest. But we show that in each instance the societal circumstances have changed, altering the balance of competing interests, yet the formulation of the doctrines has not been adjusted accordingly. Our larger conclusion is that non-exculpatory defenses, based as they are upon a balance of competing societal interests, rather than principles of societal harm and personal blameworthiness, require constant re-examination and adjustment in ways that justification and excuse defenses do not.

Although an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision makers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction; the debtpaid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed); the reformed offender, who takes affirmative steps to leave criminality behind; and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.