Is the American criminal justice system dysfunctional? Our criminal codes are so voluminous that they bewilder not only the average citizen, but also the average lawyer. Our courthouses are so busy that they no longer have time for trials. And the American prison population now leads that of the world. Are these trends desirable, satisfactory, or disturbing? In order to answer that question, one must first be clear about the fundamental purpose of the criminal law. Fifty years ago, the distinguished Harvard law professor Henry M. Hart Jr. wrote his classic article entitled The Aims of the Criminal Law. In this volume, America's leading judges and scholars reexamine Professor Hart's thesis and the first principles of American criminal law.

IN THE NAME OF JUSTICE

LEADING EXPERTS REEXAMINE THE CLASSIC ARTICLE "THE AIMS OF THE CRIMINAL LAW"

CATO INSTITUTE

Copyright © 2009 Cato Institute
All right reserved.
ISBN: 978-1-933995-22-9

Contents

Introduction Timothy Lynch.................................................................................................................................................vii1. The Aims of the Criminal Law Henry M. Hart, Jr..........................................................................................................................12. You're (Probably) a Federal Criminal Alex Kozinski and Misha Tseytlin...................................................................................................433. How Correct Was Henry M. Hart? James Q. Wilson..........................................................................................................................574. Federal Criminal Law: Punishing Benign Intentions-A Betrayal of Professor Hart's Admonition to Prosecute Only the Blameworthy Harvey A. Silverglate.....................655. Henry Hart's "The Aims of the Criminal Law": A Reconsideration Richard A. Posner........................................................................................956. How Would Henry Hart Have Approached the Problem of Suicide Terrorism? Alan M. Dershowitz...............................................................................1037. The Community's Role in Defining the Aims of the Criminal Law James B. Jacobs...........................................................................................1198. If the Criminal Law Don't Fit, Civilly Commit Richard B. Sanders, Jacob Zahniser, and Derek Bishop......................................................................1319. Substantive Limitations on the Criminal Law: Random Thoughts of a Judicial Conservative Stephen Markman.................................................................151AppendicesA. The Federal Prosecutor Robert H. Jackson................................................................................................................................173B. Crime Milton and Rose Friedman..........................................................................................................................................179C. An Address to the American Bar Association Anthony M. Kennedy...........................................................................................................189Notes.......................................................................................................................................................................195Recommended Bibliography....................................................................................................................................................235Contributors................................................................................................................................................................239Index.......................................................................................................................................................................241

Chapter One

The Aims of the Criminal Law Henry M. Hart, Jr.

I. Introduction

In trying to formulate the aims of the criminal law, it is important to be aware both of the reasons for making the effort and of the nature of the problem it poses.

The statement has been made, as if in complaint, that "there is hardly a penal code that can be said to have a single basic principle running through it." But it needs to be clearly seen that this is simply a fact, and not a misfortune. A penal code that reflected only a single basic principle would be a very bad one. Social purposes can never be single or simple, or held unqualifiedly to the exclusion of all other social purposes; and an effort to make them so can result only in the sacrifice of other values which also are important. Thus, to take only one example, the purpose of preventing any particular kind of crime, or crimes generally, is qualified always by the purposes of avoiding the conviction of the innocent and of enhancing that sense of security throughout the society which is one of the prime functions of the manifold safeguards of American criminal procedure. And the same thing would be true even if the dominant purpose of the criminal law were thought to be the rehabilitation of offenders rather than the prevention of offenses.

Examination of the purposes commonly suggested for the criminal law will show that each of them is complex and that none may be thought of as wholly excluding the others. Suppose, for example, that the deterrence of offenses is taken to be the chief end. It will still be necessary to recognize that the rehabilitation of offenders, the disablement of offenders, the sharpening of the community's sense of right and wrong, and the satisfaction of the community's sense of just retribution may all serve this end by contributing to an ultimate reduction in the number of crimes. Even socialized vengeance may be accorded a marginal role, if it is understood as the provision of an orderly alternative to mob violence.

The problem, accordingly, is one of the priority and relationship of purposes as well as of their legitimacy-of multivalued rather than of single-valued thinking.

There is still another range of complications which are ignored if an effort is made to formulate any single "theory" or set of "principles" of criminal law. The purpose of having principles and theories is to help in organizing thought. In the law, the ultimate purpose of thought is to help in deciding upon a course of action. In the criminal law, as in all law, questions about the action to be taken do not present themselves for decision in an institutional vacuum. They arise rather in the context of some established and specific procedure of decision: in a constitutional convention; in a legislature; in a prosecuting attorney's office; in a court charged with the determination of guilt or innocence; in a sentencing court; before a parole board; and so on. This means that each agency of decision must take account always of its own place in the institutional system and of what is necessary to maintain the integrity and workability of the system as a whole. A complex of institutional ends must be served, in other words, as well as a complex of substantive social ends.

The principal levels of decision in the criminal law are numerous. The institutional considerations involved at the various levels differ so markedly that it seems worthwhile to discuss the question of aims separately, from the point of view of each of the major agencies of decision.

II. The Perspective of Constitution Makers

We can get our broadest view of the aims of the criminal law if we look at them from the point of view of the makers of a constitution-of those who are seeking to establish sound foundations for a tolerable and durable social order. From this point of view, these aims can be most readily seen, as they need to be seen, in their relation to the aims of the good society generally.

In this setting, the basic question emerges: Why should the good society make use of the method of the criminal law at all?

A. What the Method of the Criminal Law Is

The question posed raises preliminarily an even more fundamental inquiry: What do we mean by "crime" and "criminal"? Or, put more accurately, what should we understand to be "the method of the criminal law," the use of which is in question? This latter way of formulating the preliminary inquiry is more accurate, because it pictures the criminal law as a process, a way of doing something, which is what it is. A great deal of intellectual energy has been misspent in an effort to develop a concept of crime as "a natural and social phenomenon" abstracted from the functioning system of institutions which make use of the concept and give it impact and meaning. But the criminal law, like all law, is concerned with the pursuit of human purposes through the forms and modes of social organization, and it needs always to be thought about in that context as a method or process of doing something.

What then are the characteristics of this method?

1. The method operates by means of a series of directions, or commands, formulated in general terms, telling people what they must or must not do. Mostly, the commands of the criminal law are "must-nots," or prohibitions, which can be satisfied by inaction. "Do not murder, rape, or rob." But some of them are "musts," or affirmative requirements, which can be satisfied only by taking a specifically, or relatively specifically, described kind of action. "Support your wife and children," and "File your income tax return."

2. The commands are taken as valid and binding upon all those who fall within their terms when the time comes for complying with them, whether or not they have been formulated in advance in a single authoritative set of words. They speak to members of the community, in other words, in the community's behalf, with all the power and prestige of the community behind them.

3. The commands are subject to one or more sanctions for disobedience which the community is prepared to enforce. Thus far, it will be noticed, nothing has been said about the criminal law which is not true also of a large part of the noncriminal, or civil, law. The law of torts, the law of contracts, and almost every other branch of private law that can be mentioned operate, too, with general directions prohibiting or requiring described types of conduct, and the community's tribunals enforce these commands. What, then, is distinctive about the method of the criminal law?

Can crimes be distinguished from civil wrongs on the ground that they constitute injuries to society generally which society is interested in preventing? The difficulty is that society is interested also in the due fulfillment of contracts and the avoidance of traffic accidents and most of the other stuff of civil litigation. The civil law is framed and interpreted and enforced with a constant eye to these social interests. Does the distinction lie in the fact that proceedings to enforce the criminal law are instituted by public officials rather than private complainants? The difficulty is that public officers may also bring many kinds of "civil" enforcement actions-for an injunction, for the recovery of a "civil" penalty, or even for the detention of the defendant by public authority. Is the distinction, then, in the peculiar character of what is done to people who are adjudged to be criminals? The difficulty is that, with the possible exception of death, exactly the same kinds of unpleasant consequences, objectively considered, can be and are visited upon unsuccessful defendants in civil proceedings.

If one were to judge from the notions apparently underlying many judicial opinions, and the overt language even of some of them, the solution of the puzzle is simply that a crime is anything which is called a crime, and a criminal penalty is simply the penalty provided for doing anything which has been given that name. So vacant a concept is a betrayal of intellectual bankruptcy. Certainly, it poses no intelligible issue for a constitution-maker concerned to decide whether to make use of "the method of the criminal law." Moreover, it is false to popular understanding, and false also to the understanding embodied in existing constitutions. By implicit assumptions that are more impressive than any explicit assertions, these constitutions proclaim that a conviction for crime is a distinctive and serious matter-a something, and not a nothing. What is that something?

4. What distinguishes a criminal from a civil sanction and all that distinguishes it, it is ventured, is the judgment of community condemnation which accompanies and justifies its imposition. As Professor Gardner wrote not long ago, in a distinct but cognate connection:

The essence of punishment for moral delinquency lies in the criminal conviction itself. One may lose more money on the stock market than in a court-room; a prisoner of war camp may well provide a harsher environment than a state prison; death on the field of battle has the same physical characteristics as death by sentence of law. It is the expression of the community's hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment.

If this is what a "criminal" penalty is, then we can say readily enough what a "crime" is. It is not simply anything which a legislature chooses to call a "crime." It is not simply antisocial conduct which public officers are given a responsibility to suppress. It is not simply any conduct to which a legislature chooses to attach a "criminal" penalty. It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.

5. The method of the criminal law, of course, involves something more than the threat (and, on due occasion, the expression) of community condemnation of antisocial conduct. It involves, in addition, the threat (and, on due occasion, the imposition) of unpleasant physical consequences, commonly called punishment. But if Professor Gardner is right, these added consequences take their character as punishment from the condemnation which precedes them and serves as the warrant for their infliction. Indeed, the condemnation plus the added consequences may well be considered, compendiously, as constituting the punishment. Otherwise, it would be necessary to think of a convicted criminal as going unpunished if the imposition or execution of his sentence is suspended.

In traditional thought and speech, the ideas of crime and punishment have been inseparable; the consequences of conviction for crime have been described as a matter of course as "punishment." The Constitution of the United States and its amendments, for example, use this word or its verb form in relation to criminal offenses no less than six times. Today, "treatment" has become a fashionable euphemism for the older, ugly word. This bowdlerizing of the Constitution and of conventional speech may serve a useful purpose in discouraging unduly harsh sentences and emphasizing that punishment is not an end in itself. But to the extent that it dissociates the treatment of criminals from the social condemnation of their conduct which is implicit in their conviction, there is danger that it will confuse thought and do a disservice.

At least under existing law, there is a vital difference between the situation of a patient who has been committed to a mental hospital and the situation of an inmate of a state penitentiary. The core of the difference is precisely that the patient has not incurred the moral condemnation of his community, whereas the convict has.

B. The Utility of the Method

We are in a position now to restate the basic question confronting our hypothetical constitution-makers. The question is whether to make use, in the projected social order, of the method of discouraging undesired conduct and encouraging desired conduct by means of the threat-and, when necessary, the fulfillment of the threat-of the community's condemnation of an actor's violation of law and of punishment, or treatment, of the actor as blameworthy for having committed the violation.

The question, like most legal questions, is one of alternatives. Perhaps the leading alternative, to judge from contemporary criticism of the penal law, would be to provide that people who behave badly should simply be treated as sick people to be cured, rather than as bad people to be condemned and punished. A constitutional guarantee to accomplish this could be readily drafted: "No person shall be subjected to condemnation or punishment for violation of law, but only to curative-rehabilitative treatment." Would the establishment of this new constitutional liberty be well-advised?

Paradoxically, this suggested guarantee, put forward here as an abandonment of the method of the criminal law, is not far removed from a point of view that has been widely urged in recent years as a proper rationale of existing law. Professors Hall and Glueck express this point of view in their recent casebook, more moderately than some of its other exponents. They recognize that "no general formula respecting the relative proportions of the various ingredients of the general punitive-corrective aim can be worked out." But they then go on to say:

It is the opinion of many of those who have studied both the causes of crime and the results of its treatment by means of the death penalty and the usual forms of incarceration, that for the vast majority of the general rule of delinquents and criminals, the corrective theory, based upon a conception of multiple causation and curative-rehabilitative treatment, should clearly predominate in legislation and in judicial and administrative practices. No other single theory is as closely related to the actual conditions and mechanisms of crime causation; no other gives as much promise of returning the offender to society not with the negative vacuum of punishment- induced fear but with the affirmative and constructive equipment-physical, mental and moral-for law-abidingness. Thus, in the long run, no other theory and practice gives greater promise of protecting society.

This suggests the possibility of a modified version of the constitutional guarantee in question, directing that "The corrective theory of crime and criminal justice, based upon a conception of multiple causation and curative-rehabilitative treatment, shall predominate in legislation and in judicial and administrative practices." Would such a provision be workable? Would it be wise?

Any theory of criminal justice which emphasizes the criminal rather than the crime encounters an initial and crucial difficulty when it is sought to be applied at the stage of legislative enactment, where the problem in the first instance is to define and grade the crime. How can a conception of multiple causation and curative-rehabilitative treatment predominate in the definition and grading of crimes, let alone serve as the sole guide? But even if it were possible to gauge in advance the types of conduct to be forbidden by the expected need for reformation of those who will thereafter engage in them, would it be sensible to try to do so? Can the content of the law's commands be rationally determined with an eye singly or chiefly to the expected deficiencies of character of those who will violate them? Obviously not. The interests of society in having certain things not done or done are also involved.

(Continues...)

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