Toward a Pragmatic Normative Framework for Criminalization, Part 4

My previous post began a consideration of general deterrence.  I view general deterrence through the lens of the criminal-justice system’s overall aim of promoting social trust.  General deterrence is one of four mechanisms by which the system seeks to promote trust.  The existence of deterrent threats to certain kinds of risky or harmful behavior provides greater reassurance to individuals that they can safely move outside of home and family spheres, engage in mutually beneficial transactions with strangers, and generally participate in the economic, political, and cultural life of our national community.

But there is a balance to be struck.  If overly tough deterrent threats are made against an overly broad or ill-defined set of behaviors, then fear of the government may become an impediment to social trust that is as great, or even greater, than the fear of private victimization.

Certain constraints on criminalization may help to mediate this tension.   (more…)

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Toward a Pragmatic Normative Framework for Criminalization, Part 3

In this post, I will begin an exploration of the implications of deterrence aims for criminalization.  By criminalization, I mean the decisions about what conduct to make criminal under what circumstances, and what level of punishment to associate with different crimes.  As I discussed in the previous post in this series, I believe the overarching objective that should animate criminalization decisions should be the enhancement of social trust.  Building trust is a difficult, but critical, objective for a diverse, individualistic society like ours, in which economic and social vitality depend on regular interactions between strangers and near-strangers.  Acute, pervasive fears of victimization in such interactions would cause a social breakdown.

One way that the criminal-justice system builds trust is through the deterrence mechanism — that is, threats of hard treatment for those who harm the persons or property of others.  Let’s call these kinds of injury “primary harms.”

The essential challenge arising from the deployment of deterrent threats is this: punishment itself necessarily includes or gives rise to primary harms, and there is no reason to view state-imposed harm as intrinsically less serious than other types of harm.   (more…)

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Toward a Pragmatic Normative Framework for Criminalization, Part 2

At bottom, our criminal-justice system exists to provide citizens with a sense of security in their day-to-day lives.  In this regard, our criminal-justice system serves the same end as our national-security system. There is, however, a fundamental difference between these systems: while the national-security system focuses on external threats posed by groups who do not belong to our political community, the criminal-justice system focuses on internal threats we pose to one another — there is no clear line distinguishing those whom the system protects from those whom the system protects against.  From this central dilemma arises all of the marvelous and maddening complexity of criminal law.

This observation also explains why criminal justice is so deeply, unavoidably political.  In principle, the system must protect all citizens equally, but social conflict is a pervasive and inevitable feature of life in a nation as large and diverse as ours.  In such a world as that, the system will rarely, if ever, be able to enhance the sense of security of one group without diminishing the security of others.  The system must choose sides, and such decisions are inherently political.

The system focuses on protecting, most obviously, the physical security of our persons and property.  Somewhat less obviously, but perhaps no less importantly, the system is also asked to safeguard certain sorts of psychic security: the individual’s sense of self-respect, of status in society, and of order and predictability in social relationships.   (more…)

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Toward a Pragmatic Normative Framework for Criminalization, Part 1

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…)

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Barrock Lecture Explores Collision Between Criminal Law and Neuroscience

“Be of good cheer; everything is going to be all right.”  With these words last week, Stephen Morse sought to reassure his audience at Marquette Law School that advances in neuroscience will not ultimately upset traditional understandings of criminal responsibility.  Morse, a professor at the University of Pennsylvania, was in town to deliver Marquette’s annual Barrock Lecture on Criminal Law.  A podcast of Morse’s engaging presentation is here.

Neuroscience is increasingly giving us the ability to understand — and even, in the form of colorful MRI images, to see — some of the specific biological processes in the brain that produce thought and action.  This suggests the possibility of “my brain made me do it” defenses, especially in cases involving defendants who have demonstrable neurological abnormalities.  If a particular aspect of a defendant’s brain can be identified as a “but for” cause of his criminal behavior, then should not that provide an excuse?

Morse argues that this defense proves too much.   (more…)

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Criminal Justice: Some Reflections on the Basics

The criminal-justice system exists to minimize the extent to which individuals perform certain acts.  There are many different tools available for society to discourage disfavored behaviors, some of which involve the use of law and legal institutions.  One such law-based tool is the criminal sanction.  It is not the only one.  There are also various forms of civil and administrative liability, as well as subsidies and other types of incentives—behavior modification mechanisms can include both carrots and sticks.  Among the sticks, the criminal sanction is normally regarded as the most forceful tool available, as well as the tool most worrisome for its tendency to produce devastating collateral damage.

It is sometimes said that the criminal-justice system exists to do other things like reinforce or clarify important moral norms; build social cohesion; identify, incapacitate, and treat individuals with dangerously antisocial tendencies; right the moral balance when it has been upset; vindicate (or perhaps more ambitiously bringing healing to) victims; or simply do justice.  Each such formulation has a certain amount of truth to it, but each presents considerable danger if it is viewed in isolation as THE overriding purpose of the criminal-justice system.

One important danger is this: in a liberal, democratic society, it is imperative that the equal worth of all individuals be respected, and that there be a wide scope of individual autonomy, particularly in such matters as conscience, private moral choice, lifestyle, and political dissent.   (more…)

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Crime Elements and Mental States: A New Theory

When legislatures create new crimes, they sometimes fail to specify what mental state must be proven with respect to each element.  These gaps in substantive criminal law give real significance to deafult rules or presumptions that certain levels of mens rea are required in certain circumstances.  The Model Penal Code, for instance, specifies that some form of mens rea (purpose, knowledge, recklessness, or negligence) must be proven as “each material element of the offense.”

The Supreme Court has also recognized a mens rea presumption, although in a somewhat more limited form than the MPC.  This was made clear, for instance, in Dean v. United States, 556 U.S. 568 (2009), in which the Court held that a ten-year mandatory minimum sentence could be triggered by the entirely accidental discharge of a firearm during a bank robbery.  The relevant statute did not specify any mental state, and Dean argued that the government should be required to prove that the discharge was knowing or intentional.  However, the Court indicated that its mens rea presumption only applied to elements that made a defendant’s conduct criminal, not to aggravating factors (like the discharge of a weapon) that merely made the defendant’s illegal conduct even worse.

Now, in an interesting new article, Eric Johnson seeks to defend and elaborate on Justice Stevens’ dissent in Dean.  (more…)

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Posner on Stephen: Punishment, Hatred, Struggle, and Power

I’ve never read the work of the Victorian judge and legal scholar James Fitzjames Stephen, but I am familiar with his famous statement that “it is morally right to hate criminals.”  Richard Posner contextualizes this statement with some interesting commentary about Stephen in a new essay in the Ohio State Journal of Criminal Law.

As Posner reads Stephen’s work (principally, his three-volume history of English criminal law), Stephen was not really a moralist, but a utilitarian who saw practical value (for him, the same thing as moral rightness) in harnessing the public thirst for vengeance against wrongdoers.  Posner puts it this way:   (more…)

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People Want Criminals to Suffer, Even If It Is “Useless”

A large body of experimental research has sought to determine whether punishment is motivated more by instrumental considerations (deterrence, incapacitation, etc.) or by retributive urges.  The various studies, although limited in important ways, have generally pointed to retribution as the primary factor in driving penal decisions in response to hypothetical fact patterns.

Add to this body of research an interesting new study Eyal Aharoni and Alan Fridlund, “Punishment Without Reason: Isolating Retribution in Lay Punishment of Criminal Offenders,” 18 Psych., Pub. Pol’y & L. 599 (2012).

Aharoni and Fridlund presented subjects with various versions of a hypothetical homicide case and then asked how much the killer should be made to suffer and what sentence should be imposed.   (more…)

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