Criminal Law as Public Law I

This chapter sketches the gradual emergence of criminal law as public law over the course of the eighteenth and nineteenth centuries, as public institutions gradually asserted control over most aspects of the criminal process. The emergence of criminal law as public law is compared to the development of the welfare state in the early decades of the twentieth century. Public institutions collectively manage the risk of crime, in part by mobilizing practices of policing, prosecution, and punishment. They represent a social commitment to treating crime as a publicly shared burden rather than merely a privately borne tragedy. The emergence of criminal law as public law suggests that, rather than understanding crime and punishment by reference to the rights of individual persons in the state of nature, a normative theory of criminal law should be appropriately sensitive to the institutional morality and political legitimacy of public institutions.

Responsibility without Resentment

Why has responsibility been so central to normative theorizing about the criminal law, even as its significance in other areas of political philosophy is diminished? This chapter considers several arguments. First, responsibility is of special concern for the criminal law because reactive attitudes such as blame and punishment are indispensable to our sense of ourselves as responsible agents. Second, when we are faced with actual criminal wrongdoing, we are called upon to respond with blame and punishment, no matter how much we are invested in other means of dealing with crime: the criminal law is inherently retributive and retrospective. Finally, responsibility means people can be liable to harm in ways that are inconsistent with democratic equality. This chapter is devoted to showing why none of these arguments is compelling. Taking responsibility seriously does not require any particular level of public investment in punishment, nor does it imply any particular level of public investment in retrospective punishment as against prospective prevention. Moreover, while people can in certain circumstances render themselves liable to defensive harm through their wrongful acts, this does not entail that public institutions are entitled to discount the rights and interests of the guilty relative to those of the innocent. In short, skepticism about punishment need not rest upon skepticism about responsibility.

Reasons to Criminalize

This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or “core,” focusing especially on Feinberg’s influential account of the criminal law as a system of direct prohibitions. The chapter argues that a subject-matter-based approach has difficulty coming to grips with actual criminal law systems in modern administrative states, in which so-called mala prohibita offenses predominate. The second half of the chapter turns to sketching how we might approach the question of criminalization from a public law point of view, both in general and with reference to the political ideal of anti-deference (sketched in Chapter 3) in particular. Along the way, the chapter argues that the (very popular) wrongfulness principle turns out to be either empty or implausible, and hence that we should reject any version of the harm principle, or of legal moralism, that presupposes it.

Conclusion

In their landmark book, Not Just Deserts, John Braithwaite and Philip Pettit cautioned that “[w]hen you play the game of criminal justice on the field of retribution . . . you give full rein to those who play to the sense of normality of the majority, urging them to tyrannize the minority.”...

Formalism and Pragmatism in Criminal Procedure

Many jurisdictions define a special procedural regime for people facing “criminal” charges; hence, whether a case is considered “civil” or “criminal” can have important consequences for access to a wide array of procedural rights. Conventionally, the distinction between “civil” and “criminal” law is drawn by reference to whether the law in question is intended to be punitive. This chapter explores an alternative approach. Drawing upon the capabilities approach literature, this chapter develops an account of the allocation of procedural rights on the basis of whether the law in question has the potential to impair effective access to central capability. The appeal of the capabilities approach is contrasted to Kolber’s proposal to index punishment by reference to subjective utility or preference. Although appeal to capabilities is novel in this context, well-known features of due process analysis in American constitutional law are broadly consistent with a capabilities-based approach to rights allocation.

Criminal Law as Public Law III

The previous chapter defended a fully political standard of justification, according to which a justification of the criminal law rests on (1) an account of when the institutions whose rules it enforces are worth supporting, and (2) an account of why its use in a particular context would be consistent with the principles that make those institutions worth supporting in the first place. This chapter offers a substantive interpretation of those more abstract ideas. Starting from a conception of a society of equals, familiar in the works of Pettit, Anderson, and Kolodny, among others, the chapter sketches an account (the political ideal of anti-deference) that is democratic, egalitarian but not equalizing, and focused on a form of freedom—central capability—as its basic evaluative currency. The chapter suggests that institutions committed to democratic equality in this sense would approve the use of the criminal law provided that those under its jurisdiction have an equal opportunity to influence the content of the law, its use does not further entrench an objectionable status hierarchy, and its use optimally protects effective access to central capability for all, criminal accused and victim alike.

Criminal Law as Public Law II

This chapter develops the “public law conception” of the criminal law. By embodying a form of negative reciprocity, the criminal law plays an important role in stabilizing social cooperation. Stabilizing social cooperation with public institutions is the basic function of the criminal law, in the sense of a function that must be adequately discharged regardless of whatever other functions we might wish to achieve by means of the criminal law. Hence, the criminal law is subject to a “fully political standard of justification”: the criminal law is worth supporting if and only if (1) the institutions whose rules it enforces are worth supporting, and (2) its use in a particular context would be consistent with the principles that make those institutions worth supporting in the first place.

Mass Incarceration and the Theory of Punishment

A popular form of retributivism insists that the permissibility of punishment is dependent solely upon the rights of the parties, with the social costs or benefits of a system of punishment relegated at best to a supporting role in justifying punishment. This chapter explains why theories of that form—despite their current popularity—cannot explain the moral judgment that the United States currently incarcerates too many people. Most commentators, including proponents of this type of theory, are inclined to believe that the United States does incarcerate too many people—that a policy of “mass incarceration” is unjustified. However, mass incarceration represents a failure of social policy, and is not readily analyzed in terms of the morality of individual transactions. The chapter concludes by briefly sketching how the political ideal of anti-deference might be brought to bear on the question of mass incarceration.