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THE ELUSIVE OBJECT OF PUNISHMENT

Published online by Cambridge University Press:  04 June 2019

Gabriel S. Mendlow
Gabriel S. Mendlow*
Affiliation:
University of Michigan Law School
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Abstract

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration.

Type
Research Article
Information
Legal Theory , Volume 25 , Issue 2 , June 2019 , pp. 105 - 131
Copyright
Copyright © Cambridge University Press 2019 

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Footnotes

*

I am grateful to audiences everywhere I presented at least some of the material in this paper: the Analytical Legal Philosophy Conference, Fordham, the Harvard/Yale/Stanford Junior Faculty Forum, the London School of Economics, Michigan, Northwestern, Oxford, Surrey, UCLA, and Yale. Special thanks to Sarah Buss, Joshua Dressler, Antony Duff, Rich Friedman, Daniel Fryer, Sam Gross, Monica Hakimi, Daniel Halberstam, Alon Harel, Scott Hershovitz, Don Herzog, Doug Husak, Dan Kahan, Jae Lee, Kyle Logue, Daniel Markovits, Bill Miller, Michael Moore, Julian Mortenson, Federico Picinali, J.J. Prescott, Eve Primus, Richard Primus, Don Regan, Jed Rubenfeld, Alex Sarch, Scott Shapiro, Seana Shiffrin, Ken Simons, Sonja Starr, Alec Walen, Peter Westen, Gideon Yaffe, Taisu Zhang, and two anonymous referees for Legal Theory. Research for this project was funded in part by the Cook Endowment.

References

1. Duff, R.A., Virtue, Vice and Criminal Liability: Do We Want an Aristotelian Criminal Law?, 6 Buff. Crim. L. Rev. 147, 155 (2003)Google Scholar (emphasis added).

2. Gardner, John, What Is Tort Law For? Part 1: The Place of Corrective Justice, 30 Law & Phil. 1, 7 (2011)CrossRefGoogle Scholar.

3. 508 U.S. 476 (1993).

4. Id. at 480 (quoting Wis. Stat. §939.645(1)(b)).

5. State v. Mitchell, 169 Wis. 2d 153, 164 (1992), rev'd, 508 U.S. 476 (1993).

6. Mitchell, 508 U.S. at 484.

7. In what follows, I use the term “jurisdiction” in two related senses: one narrow, the other broad. In the narrow sense, jurisdiction concerns a given entity's authority to adjudicate a particular dispute. Questions of venue implicate jurisdiction in the narrow sense. In the broad sense, jurisdiction concerns the law's general authority to adjudicate disputes of a given type. Questions of the law's proper ambit (e.g., may the law punish people for their thoughts?) implicate jurisdiction in the broad sense.

8. See City of Chicago v. Morales, 527 U.S. 41 (1999) (considering vagueness challenge to Chicago Municipal Code §8–4–015 (added June 17, 1992)).

9. Duff, supra note 1, at 155.

10. Id.

11. Proportionality and accountability are not the only considerations relevant to determining whether a given punishment is justified. But (as we will see) they are considerations especially sensitive to the identity of a given punishment's object.

12. See Feinberg, Joel, The Expressive Function of Punishment, in Doing and Deserving: Essays in the Theory of Responsibility 95–118, 98 (1970)Google Scholar.

13. See Dubber, Markus Dirk, Toward a Constitutional Law of Crime and Punishment, 55 Hastings L.J. 509, 509–510 (2004)Google Scholar.

14. Compare the majority and dissenting opinions in Roe v. Wade, 410 U.S. 113 (1973).

15. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that Georgia statute criminalizing consensual “homosexual sodomy” does not violate U.S. constitution), with Lawrence v. Texas, 539 U.S. 558 (2003) (holding that Texas statute criminalizing consensual “homosexual sodomy” violates U.S. Constitution).

16. 508 U.S. 476 (1993).

17. Id. at 480 (quoting Wis. Stat. §939.645(1)(b)).

18. State v. Mitchell, 169 Wis. 2d 153, 164 (1992), rev'd, 508 U.S. 476 (1993).

19. Mitchell, 508 U.S. at 484 et seq.

20. The error of certain criticisms of hate crime laws is that they fail to appreciate how the underlying object of punishment might be a unitary wrong of this sort. See Mendlow, Gabriel S., Thoughts, Crimes, and Thought Crimes, 118 Mich. L. Rev. (forthcoming 2020)Google Scholar.

21. This question is the gist of the dispute between “objectivist” and “subjectivist” theories of criminal attempts, on which see R.A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (2007), at 96.

22. Model Penal Code §5.01 provides that “[a] person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he … purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” Citing the Model Penal Code's attempt provision, The Encyclopedia of Crime and Justice says that “modern attempt law comes fairly close to the punishment of mere intentions. What little conduct on the part of the accused is required (and sometimes that is minimal indeed) is explicitly seen as serving an evidentiary role of corroborating the accused's criminal intent.” Dan-Cohen, Meier, Actus Reus, in 1 Encyclopedia of Crime and Justice 15, 17 (Kadish, Sanford H. ed., 1983)Google Scholar. See Am. Law Inst., Model Penal Code & Commentaries Part I, §5.01, 298 (1985).

23. Am. Law Inst., supra note 22, at 321.

24. See Model Penal Code §5.05(1).

25. See id. §1.13(10).

26. See 18 U.S.C. 922(g).

27. United States v. Blount, 111 F.3d 129, 129 (4th Cir. 1997).

28. See H.R. Rep. No. 89–488, at 3 (1965).

29. 225 U.S. 347 (1912).

30. Id. at 388 (Holmes, J., dissenting) (emphasis added).

31. Id. at 359.

32. Id. (internal quotation marks omitted).

33. Id. at 387; see also id. at 386–387.

34. Id. at 363.

35. 527 U.S. 41 (1999).

36. Id. at 47 (plurality opinion) (quoting Chicago Municipal Code §8–4–015 (added June 17, 1992)).

37. Id. at 42.

38. Id. at 58 (emphasis added).

39. Id. at 106 (Thomas, J., dissenting) (emphasis added).

40. Id. at 64 (plurality opinion).

41. Id. at 54.

42. Id. at 113.

43. Id. at 109.

44. Codified at 18 U.S.C. §924(e).

45. Id.

46. See H.R. Rep. No. 98–1073, at 1.

47. A.P. Simester, Prophylactic Crimes, in Seeking Security: Pre-empting the Commission of Criminal Harms (G.R. Sullivan & Ian Dennis eds., 2012).

48. Andrew von Hirsch & Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (2005), at 134.

49. What I am calling a “discretion-limiting element” relates closely to what Meir Dan-Cohen calls a “decision rule,” a rule directed to the legal officials who administer rules of primary conduct. See Dan-Cohen, Meir, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984)CrossRefGoogle Scholar.

50. Yates v. United States, 354 U.S. 298, 334 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978).

51. Cf. Dan-Cohen, supra note 49, at 650.

52. 2 L.R.-Cr. Cas. Res. 154 (1875).

53. Offences Against the Person Act 1861, 24 & 25 Vict., c. 100, §55 (Eng.).

54. Prince, 2 L.R.-Cr. Cas. Res. at 175 (Bramwell, B.).

55. Dan-Cohen, supra note 49, at 650.

56. Prince, 2 L.R.-Cr. Cas. Res. at 175 (Bramwell, B.).

57. Perhaps a more accurate rendition of the norm would be a proscription on sexual conduct with people either too immature to consent to sex with an older person or too immature to have sex with an older person without risking serious physical or psychological injury.

58. In addition to screening for clarity, the age element in statutory rape offenses also may screen for severity, insofar as immature people under a given age are on the whole (even) less capable of consent and (even) more vulnerable to harm than are immature people over that age. It's safe to say that the lower the critical age in a statutory rape offense, the more the age element screens for severity and the less it screens for clarity. Where the critical age is very low, e.g., ten, the age element probably screens only for severity, as sexual contact with people a year or two over that age is assuredly an equally clear-cut violation of the underlying moral norm.

59. A typical approach to drunk driving is California's. See People v. McNeal, 46 Cal. 4th 1183, 1193 (2009) (discussing California's “two parallel statutes making it a crime to drive while intoxicated,” one “requiring proof that the defendant was actually impaired by his drinking,” the other “simply requir[ing] proof that the defendant had been driving with a blood alcohol level over the legal limit”).

60. Douglas N. Husak, Overcriminalization: The Limits of the Criminal Law (2008), at 107.

61. See, e.g., id. at 103–119; Duff, R.A., Crime, Prohibition, and Punishment, 19 J. Applied Phil. 97 (2002)CrossRefGoogle Scholar; Duff, Answering for Crime, supra note 21, at 166–172.

62. A drunk driver in Arizona, for example, faces the following mandatory penalties: if his blood alcohol concentration exceeds 0.08%, a minimum of 10 days in jail on a first offense and 90 on a second offense; if his blood alcohol concentration exceeds 0.15%, a minimum of 30 days in jail on a first offense and 120 on a second offense; if one of several aggravating circumstances obtains (e.g., driving with a suspended license, driving with a person under fifteen in the vehicle), a minimum of two years in prison. See Ariz. Rev. Stat. Ann. §§12-1381–12-1383 (2017).

63. Morissette v. United States, 342 U.S. 246, 256 (1952).

64. See supra note 62.

65. In United States v. Freed, 401 U.S. 601 (1971), for example, the Supreme Court did not require the government to prove that a defendant charged with possessing unregistered hand grenades knew of the registration requirement, because “one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Id. at 609.

66. See Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and Its Processes (10th ed. 2017), at 301.

67. Model Penal Code §213.6(1).

68. See id. §§2.02(1), 2.05(1).

69. Duff, supra note 21, at 87.

70. Id.

71. Id. at 86.

72. See Simester, supra note 47.

73. Adler, Amy, Inverting the First Amendment, 149 U. Pa. L. Rev. 921, 995 (2001)CrossRefGoogle Scholar (quoting Brief of National Law Center for Children and Families et al. as Amici Curiae in Support of the Respondent at Part IV.C., Knox v. United States, 510 U.S. 939 (1993) (No. 92–1183)). Adler's charge that child pornography prohibitions “police thoughts and fantasy, not actions,” id., was directed at the federal Child Pornography Prevention Act of 1996, which banned sexual images of youthful-looking adults and computer-generated images appearing to depict children engaged in sexual conduct. See 18 U.S.C. §2256(8)(B). Although this ban on “virtual” child pornography subsequently was struck down by the Supreme Court, see Ashcroft v. Free Speech Coal., 535 U.S. 234, 234 (2002), Adler's charge still applies to nonvirtual pornography insofar as Congress's reason for banning it is at least in part that “[Congress does] not like the way people think about certain pictures of children.” Adler, supra, at 995.

74. Koppelman, Andrew, Does Obscenity Cause Moral Harm?, 105 Colum. L. Rev. 1635, 1637 (2005)Google Scholar.

75. Id.

76. In what follows, I assume for the sake of discussion that punishment for (mere) thought is unjust, although I do not think anyone has provided an adequate account of why that is. See Gabriel S. Mendlow, Why Is It Wrong To Punish Thought?, 127 Yale L.J. 2342 (2018).

77. See Morris, Herbert, Punishment for Thoughts, 49 Monist 342, 351 (1965)CrossRefGoogle Scholar.

78. I accordingly resist drawing too rigid a version of Nicola Lacey's distinction between what the law criminalizes formally (in “legislation, judicial decisions, international treaties”) and what the law criminalizes substantively (through the “actual implementation of formal norms”). Lacey, Nicola, Historicising Criminalisation: Conceptual and Empirical Issues, 72 Modern L. Rev. 936, 943 (2009)CrossRefGoogle Scholar.

79. For some evidence of the relevant sort, see Gilden, Andrew, Punishing Sexual Fantasy, 48 Wm. & Mary L. Rev. 419, 419 (2016)Google Scholar (“reveal[ing] a widespread and overlooked pattern of harshly punishing individuals for exploring their sexual fantasies on the Internet”).

80. Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (2011), at 114–115 (“Many new terrorism offenses enacted after 9/11 pushed the envelope of inchoate liability and came dangerously close to creating status offenses, thought crimes, and guilt by association.”); see Roach, Kent, Terrorism, in The Oxford Handbook of Criminal Law 812, 814 (Dubber, Markus D. & Hörnle, Tatjana eds., 2014)Google Scholar; Ashworth, Andrew, Criminal Law, Human Rights and Preventative Justice, in The Redirection of Criminalisation and the Futures of Criminal Law 88–89 (McSherry, B., Norrie, A. & Bronitt, S. eds., 2009)Google Scholar.

81. Terrorism Act, 2006, pt. 1, §13 (U.K.).

82. Terrorism Act, 2000, pt. 3, §16 (U.K.).

83. Commonwealth v. Jones, 355 Mass. 170, 176 (1969).

84. Among the items that courts have considered burglar's tools are soap, a kitchen knife, a sponge, rubber gloves, a wrench, batteries, a candle, charcoal, a clock, cotton, an extension cord, adhesive tape, a flashlight, a funnel, a hammer, a needle, pliers, a razor blade, scissors, a screwdriver, toothpicks, tweezers, and Vaseline. See Validity, Construction, and Application of Statutes Relating to Burglars’ Tools, 33 A.L.R.3d 798 (1970).

85. Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369 (1940) (emphasis added).

86. See Bonfield, Arthur E., The Abrogation of Penal Statutes by Nonenforcement, 49 Iowa L. Rev. 389 (1964)Google Scholar; Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962), 143–156.

87. A further point, not explored here, is that the object of punishment can be elusive not only at the level of statutes but also at the level of individual prosecutions. Thanks to charging and sentencing discretion, an offender can be punished for a wrong different from the wrong criminalized by the statute under which he is prosecuted. See Gabriel S. Mendlow, Divine Justice and the Library of Babel: Or, Was Al Capone Really Punished for Tax Evasion?, 16 Ohio St. J. Crim. L. __ (forthcoming 2019).