What conduct should be made criminal, and how should the severity of different crimes be graded? Consider a few scenarios:
- A college student grows marijuana in a small garden behind his house. He and his housemates consume the entirety of the crop.
- An author writes disturbing fictional stories of child molestation, which he posts on his public blog. A grown victim of childhood sexual assault comes across one of the stories and reads it, causing intense psychological trauma.
- A careless (but sober) driver drifts over the centerline of a two-lane highway, colliding with an oncoming vehicle and killing the other driver.
- A woman hires a hit man to kill her husband, who is having an affair. Shortly thereafter, she thinks better of it, and cancels the hit. No one is physically harmed.
- After being mugged, a woman purchases a handgun for self-protection. One night, as she is walking alone in a high-crime neighborhood, a panhandler approaches her and asks for money. She immediately pulls out her gun and kills the panhandler.
- A man in his home hears a woman outside screaming that she is being raped. He does not go to his window, call the police, or do anything else to help.
- A man has a history of becoming violent after drinking. He has several convictions for disorderly conduct and assault, mostly in connection with barroom fights. He enters a bar and begins drinking.
Which of these scenarios should be treated as crimes? Among those, which is most severe and deserving of the greatest punishment? Which is least severe?
It seems self-evident that such questions ought to be answered by reference to the basic purpose or purposes of criminal punishment. The alternative seems an ad hoc, unpredictable, arbitrary criminal-justice system that often operates at cross-purposes with itself.
Criminal law courses, in any event, traditionally proceed on the assumption that purposes do matter to criminalization, in both a descriptive and normative sense. Four purposes are conventionally identified: deterrence, incapacitation, rehabilitation, and retribution.
However, I’ve long had the nagging sense that conversations around these purposes — in courtrooms no less than classrooms — are chronically superficial and unproductive. (more…)