A Comparative Insight on Brink and Yankah
Yankah begins his article with a story about when he was in an accident. He explains how he was in a big moving truck late at night with his friend (both were black) after a long day of hard work and he realized he had been hit from behind. The person who hit him was an Arab American and he came to the moving truck very angry and yelling saying it was Yankah’s fault. Soon two police cars were at the scene and Yankah immediately became aware that him and his friend looked like they were in a bad (stereotypical) situation as they were dirty, driving a big truck late at night. The officer came to the door and immediately Yankah begins saying he apologizes and explains why they were out late. The other driver on the other hand was being loud and speaking in understandable broken English. Yankah then goes on to explain that he had been viewed as the “good guy” due to the way he spoke and his diction while the foreigner had been viewed as the “bad guy”.
He uses this story to explain his theory about the criminal law. He argues that “punishing offenders because they are bad people is unjust in the same way that that the Arab-American driver on the street was treated unjustly” (Yankah 1021). Just because he fit the profile of the bad guy he suffered the result of being the bad guy. He goes on to describe the danger of premising justification of punishment on another person’s character. Yankah’s main point throughout his article was if wrongdoing is determined by poor character or poor choices. To help explain his ideas he uses various examples, some being imaginary and some being real world example or even movie characters, but he also explains the Act theory. The act theory says that an individual’s character is not determined by their actions.
Brink takes the opposite approach as Yankah and instead of starting out with a story starts out with definitions. While he lays out many definitions the two main ones are Narrow and Broad culpability. He describes narrow culpability as an ingredient in wrongdoing itself, describing the agent's elemental mens rea and broad culpability as the responsibility condition that makes wrongdoing blameworthy and without which wrongdoing is excused. The distinction between narrow and broad culpability is significant because it helps understand and assess the distinction between attributability and accountability and ultimately the nature and permissibility of strict liability crimes.
Brink goes on later to discuss Predominant Retributivism which he defines as “a mixed theory of punishment in which a backward-looking emphasis on desert predominates over forward-looking rationales for punishment, such as deterrence, rehabilitation, and the expression of community norms” (351). Any form of this is shown as a constraint on blame and punishment and is sometimes called the negative retributivist thesis. This theory also insists that desert is not just a constraint on blame and punishment but that it also provides an important explanation for those attitudes and practices and this is sometimes called the positive retributivists thesis. Basically the predominant retributivism theory says that wrongdoers who are culpable should be punished, and should be punished to the extent of their wrongdoing.
Yankah and Brink explained what they think makes a person guilty of a crime in two very different ways. Yankah used more real world examples and in doing so provided more imagery and examples for the reader. Brink on the other hand used more textbook definitions to explain culpability. Even though they both used different styles to explain their ideas they both worked very well to explain they’re argument and provided the reader with what they needed to understand the arguments.