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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Certainty v. Severity Revisited: The Impact of Ambiguity

Earlier this week, I posted on the classic question of whether certainty in punishment is more important than severity.  By some coincidence, when I then received the latest issue of Criminology, I found a fascinating new article that explores another dimension of the certainty problem.

The terminology is a little awkward here, but the authors are interested in what they call the “ambiguity” surrounding the risk of punishment.  The basic idea is this: two different people contemplating a crime might both reach the same estimate of the risk of getting caught, but one might have much more confidence in his estimate than the other.  The less confident criminal perceives the same level of risk, but a higher level of ambiguity.  What effect, if any, does such ambiguity have on deterrence?  That is the question that Thomas A. Loughran and his coauthors consider in “On Ambiguity in Perceptions of Risk: Implications for Criminal Decision Making and Deterrence,” 49 Criminology 1029 (2011).

Some criminologists have theorized that ambiguity might have an independent deterrent effect apart from the actual risk of getting caught.  (1031)  If so, then one potential implication is that police can maximize their effectiveness by being unpredictable.

(more…)

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Certainty v. Severity of Punishment: The Need for Mechanisms of Restraint

For at least two and a half centuries, since the time of Cesare Beccaria, criminologists have recognized that the effectiveness of punishment depends more on its swiftness and certainty than on its severity.  Yet, in the United States today, our criminal-justice system has it exactly backwards, relying on what Mark Kleiman and Kelsey Hollander justifiably call “a system of randomly Draconian punishments.”  In an insightful new article, Kleiman and Hollander describe in clear, simple terms the systemic reforms that ought to be adopted in order to implement the basic principle that certainty matters more than severity.  See “Reducing Crime by Shrinking the Prison Headcount,” 9 Ohio St. J. Crim. L. 89 (2011).  They even have an actual, working model of this system to demonstrate its effectiveness: Honolulu’s Project HOPE, which, using a system of summary sanctioning, has achieved dramatic reductions in recidvism among probationers.  Klieman and Hollander argue that the HOPE model can and should be expanded to a number of other populations, including parolees.

I find much that is appealing in Kleiman and Hollander’s reform program.  But I also think there is something important that is missing in their analysis.  As I’ve pointed out in my criticisms of the “evidence-based decision making” movement, there are real dangers when we think about criminal justice purely in terms of the efficient management of social risk.  The most fundamental problem with this model is that it assumes that we are capable of treating the people we label as “dangerous” in a restrained, carefully cost-benefit-justified way, when experience teaches that this sort of marking tends to unleash powerful emotional responses like disgust and vindictiveness.  James Whitman has written eloquently, and I think persuasively, of these important tendencies.

Indeed, we should ask why it is that the certainty-based approach of Kleiman and Hollander is not the norm.  After all, the central premises of their model date back to Beccaria.

(more…)

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Why Following the Rules Should Get You Out of Prison Early

I have a new paper on SSRN entitled “Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early.”  Most U.S. jurisdictions permit inmates to obtain credit toward early release based on good behavior in prison.  It’s not immediately clear, though, why the severity of a prison sentence should vary depending on how well an offender follows the rules while incarcerated.  No amount of good or bad conduct in prison is capable of changing the seriousness of the underlying crime for which the offender is being punished.

The most common justification for good time is probably that it makes the job of prison administrators easier by giving them an additional set of incentives and sanctions to hold over inmates.  Critics question, however, whether the potential loss of good time really does add anything to the deterrent effect of much more immediate sanctions, such as disciplinary segregation.  Critics also object that the loss of good time — functionally an extension of the prison term — is not a just and proportionate response to rules violations that may be relatively technical and harmless and that need not be proven through formal trial-type proceedings.

In the paper, I argue that good time can thought of and justified in a different light.  In essence, I suggest that good conduct in prison can be conceptualized as a form of partial atonement for the underlying crime.  If seen in this way, good-time credits can be justified as a way of recognizing atonement, which seems to me an appropriate objective for the criminal-justice system.

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