The New Philosophy of Criminal Law PDF
Preview The New Philosophy of Criminal Law
The New Philosophy of Criminal Law The New Philosophy of Criminal Law Edited by Chad Flanders and Zachary Hoskins London•NewYork PublishedbyRowman&LittlefieldInternational,Ltd. UnitA,WhitacreMews,26-34StannaryStreet,LondonSE114AB www.rowmaninternational.com Rowman&LittlefieldInternational,Ltd.isanaffiliateofRowman&Littlefield 4501ForbesBoulevard,Suite200,Lanham,Maryland20706,USA WithadditionalofficesinBoulder,NewYork,Toronto(Canada),andLondon(UK) www.rowman.com Selectionandeditorialmatter©2016byChadFlandersandZacharyHoskins Copyrightinindividualchaptersisheldbytherespectivechapterauthors Allrightsreserved.Nopartofthisbookmaybereproducedinanyformorbyany electronicormechanicalmeans,includinginformationstorageandretrievalsystems, withoutwrittenpermissionfromthepublisher,exceptbyareviewerwhomayquote passagesinareview. BritishLibraryCataloguinginPublicationInformationAvailable AcataloguerecordforthisbookisavailablefromtheBritishLibrary ISBN:HB978-1-78348-413-3 ISBN:PB978-1-78348-414-0 LibraryofCongressCataloging-in-PublicationData Thenewphilosophyofcriminallaw/EditedbyChadFlandersandZacharyHoskins. pagescm Includesbibliographicalreferencesandindex. ISBN978-1-78348-413-3(cloth:alk.paper)—ISBN978-1-78348-414-0(pbk.)—ISBN978-1- 78348-415-7(electronic) 1.Criminallaw—PhilosophyI.Flanders,Chad,editor.II.Hoskins,Zachary,1973–editor. K5018.N492016 345.001—dc23 2015033054 TMThepaperusedinthispublicationmeetstheminimumrequirementsofAmerican NationalStandardforInformationSciencesPermanenceofPaperforPrintedLibrary Materials,ANSI/NISOZ39.48-1992. PrintedintheUnitedStatesofAmerica Contents Introduction 1 ChadFlandersandZacharyHoskins PartI:CrimeandtheFunctionofCriminalLaw 17 1 TwoConceptionsoftheCriminalLaw 19 VincentChiao 2 EmbodiedEthicalLifeandtheCriminalLaw 37 JoshuaKleinfeld 3 WhatAretheSexualOffenses? 57 StuartP.Green PartII:AuthorityandLegitimacy 77 4 ConditionsofLegitimatePunishment 79 AliceRistroph 5 DoestheStateHaveaMonopolytoPunishCrime? 97 DouglasHusak 6 UniversalJurisdictionandInternationalCriminalLaw 113 JovanaDavidovic PartIII:OffendersandVictims 131 7 HistoricizingCriminalResponsibility 133 ArlieLoughnan 8 VictimsofCrime:TheirRightsandDuties 153 SandraMarshall v vi Contents PartIV:CriminalProcedure 171 9 ReformingPleaBargaining 173 RichardL.Lippke 10 PresumptionsofInnocence 193 R.A.Duff PartV:Sanctions 211 11 PunishmentasanApologyRitual 213 ChristopherBennett 12 Equity,NotMercy 231 MarySigler 13 CollateralRestrictions 249 ZacharyHoskins SelectedBibliography 267 Index 271 ListofContributors 275 Introduction Chad Flanders and Zachary Hoskins It is always risky to say that one is doing anything “new” in philosophy, a discipline that has been characterized as nothing more than a series of foot- notes to Plato. But it is precisely the ambition of this volume to stimulate newthinkingaboutthephilosophyofcriminallaw.Therealitiesofcrimeand criminal justice in the Western world are changing, and it is appropriate for theoriestryingtoexplainandassesstheserealitiestochangewiththem. There is a genuine sense today that the criminal law and criminal justice systemarebroken.Totakeonlytwoofthemoreobviousexamples,concerns are nowroutinelyraised(especially, though not solely, in theUnited States) aboutthephenomenaof“overcriminalization”and“massincarceration.”For the philosophy of criminal law, this means that theorizing about traditional questions of “what makes a criminal law just?” and “what justifies punish- ment?” is being done in the shadow of overcrowded prisons, frequently abusive police tactics, and an ever-expanding net of criminal laws. It is a system in which most defendants “plead out” rather than go to trial, and where convicted offenders are subject to substantial legal restrictions well after they have completed their sentences. What should our criminal law theoriessaywhentherealitytheypurporttoaddresshaschangedsodramati- cally, and varies wildly from its own stated aims? How should the philoso- phyofcriminallawadjust? Iftheproblemsthatthephilosophyofcriminallawhastraditionallydealt with are changing, then the philosophy of criminal law should change with them. And we can see this beginning to happen, in three broad ways. The philosophy of criminal law is becoming more holistic, more critical, and more interdisciplinary. Let us briefly describe what we mean by these terms.1 1 2 ChadFlandersandZacharyHoskins By “holism,” we mean that the philosophy of criminal law should no longertreatthevariouspartsofthecriminaljusticesystemsolelyinisolation from one another. Instead, we must look at the system as a whole, and how the parts of it interact. In a way, this is obvious. The legitimacy of a system ofpunishmentdependsnotonlyonwhetherpunishmentitselfisjustifiedbut also on whether the laws people are punished for breaking are just, and whethertheproceduresusedtoconvictthemarefair.Conversely,wecannot fully determine whether our criminal laws are just without considering the costs of breaking them. But if this is true, then it follows we cannot look at the parts of the criminal justice system separately. We can’t determine whether punishment is justified simply by looking at the various traditional rationalesforpunishment,norcanwelookatcriminallawsbythemselvesto see if they are just: we must consider whether the entire system of criminal justicecanbejustified.Thisisnottosaythatthereisnovalueinfocusingon particularquestions; it isjustto say that wemustnot losesightof theforest for the trees. Focusing too closely only on the various parts of the system oversimplifies,anddistorts,thecriminallawtheorist’stask. By saying that the criminal law has become more “critical,” we mean of course that it is critical of existing arrangements, but we also mean some- thingbroader.Inlawschools,thestudyofcriminallawcanbestrictlydoctri- nal: for example, going through the “elements” of the most common crimes andthemostcommonexcusingorjustifyingconditions(self-defense,duress, etc.).Sometimesphilosophyfollowstheteachingofcriminallawinjustthis way, by trying to provide an analysis and a justification for the traditional concepts of the criminal law. This way of approaching the topic of criminal lawtendsto beconservative. Itassumesthat thecategoriesthevariouslegal systems of the world (or, usually, the U.S. and English legal systems) have given us are roughly correct, and that the challenge is to explain them, to showhowtheyfittogether,andtoofferasensibleinterpretationofthem. Amorecriticaltakeonthecriminallawasksnotwhatthebestinterpreta- tionisofourcurrentpracticesorcategories,butwhywehavethesepractices and categories in the first place. It is “radical” in the sense of getting to the root of things—to the deep foundations of the criminal law. What results from these investigations is not necessarily a validation of the status quo. It may be a wholesale rethinking of the concepts of “crime” or of “punish- ment.”Itmayresultinadiminishedrespectforthelinethatdividesthecivil andthecriminal,forexample.Oritmay,instead,resultinarenewedrespect forthedistinction,but forreasons of whichwewerepreviously unaware, or only dimly aware—so that we no longer treat these categories as we did in the past. Being “critical” in this sense fits well with being holistic, because beingcritical means abstractingfromnarrow doctrinalcategoriesandtaking amorecomprehensiveviewofwhatthecriminaljusticesystemis,andhowit isjustified. Introduction 3 Finally (and related to the previous two points), the philosophy of crimi- nal law is more avowedly “interdisciplinary.” Traditional boundaries be- tween the various areas of philosophy—moral, political, and legal theory— aregivingway.Forexample,criminallawtheoristsexaminingpunishment’s justificationarerecognizingthatthisisnotmerelyaquestionoflegaloreven moral philosophy, but of political philosophy as well. Legal punishment, afterall,istheparadigmaticexerciseofastate’spoweroveritscitizens,and determining whether this exercise is legitimate requires engagement with political as well as moral concepts. Similarly, philosophers of criminal law are increasingly recognizing that the tools and resources of other disciplines (history, sociology, the hard sciences, etc.) can be of use in exploring tradi- tional questions about punishment, criminal responsibility, and other con- cepts.2 These three themes represent what we see coming together in a “new” philosophy of criminal law: it is more holistic, aggressively critical, and increasingly interdisciplinary. Accordingly, the remainder of this introduc- tion does two things. First, it offers a more expansive discussion of the changing landscape of criminal law theory by focusing on three major, cur- rentproblemsfacingcriminaljusticesystemsandsocietymoregenerally.An understanding of these problems is important in its own right, but the prob- lemsthemselvesalsochallengeustorethinkhowweengageincriminallaw theory. The second thing this introduction does, of course, is to introduce the chapters in this volume. We think each of the chapters, in different ways, representsthenewthinkingaboutthecriminallawthatwe’vedescribedhere: asbeing,invariousrespects,holistic,critical,orinterdisciplinary.Theyalso, in their various ways, come to grips with the new landscape of crime and criminaljusticedescribedinthefirstpartofthisintroduction.Thechaptersin thisvolumeshowthephilosophyofcriminallawasitisbeingpursuedtoday as open and flexible, responsive to the current crises in our practices of criminaljustice,andlookingbeyondthesecrisestoatimewhenourcriminal law will be fair, just, and effective. The contributors do not all agree, but rather show the health and vigor of the state of debate in the philosophy of criminallaw. I.THENEWCHALLENGESOFTHECRIMINALLAW Traditionally, a major puzzle of the philosophy of criminal law has been whether (and how) punishment is justified. Today’s criminal law theorists continue to grapple with punishment, to be sure—and with good reason, giventhemodernphenomenaofmassincarceration,increasinglyharshpun- ishments, and racial disparities in how we punish. But, as we have said,
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