The Palgrave Handbook of Applied Ethics and the Criminal Law

Larry Alexander, Kimberly Kessler Ferzan, Larry Alexander, Kimberly Kessler Ferzan

• Publisher: Palgrave Macmillan
• Year: 2019
• Print ISBN:
  9783030228101
• eBook ISBN:
  9783030228118
• Topic: Philosophy
• Subtopic: Criminal Law

This handbook consists of essays on contemporary issues in criminal law and their theoretical underpinnings. Some of the essays deal with the relationship between morality and criminalization. Others deal with criminalization in the context of specific crimes such as fraud, blackmail, and revenge pornography. The contributors also address questions of responsible agency such as the effects of addiction or insanity, and some deal with punishment, its mode and severity, and the justness of the state's imposition of it. These chapters are authored by some of the most distinguished scholars in the fields of applied ethics, criminal law, and jurisprudence.

© The Author(s) 2019

L. Alexander, K. K. Ferzan (eds.)The Palgrave Handbook of Applied Ethics and the Criminal Lawhttps://doi.org/10.1007/978-3-030-22811-8_1

Begin Abstract

1. Introduction

Larry Alexander¹ and Kimberly Kessler Ferzan²

(1)

University of San Diego School of Law, San Diego, CA, USA

(2)

University of Virginia School of Law, Charlottesville, VA, USA

Larry Alexander (Corresponding author)

Email: [email protected]

Kimberly Kessler Ferzan

Email: [email protected]

End Abstract

There are myriad ways that one might approach the relationship between ethics and criminal law. One might begin with what one takes to be the best ethical theory and then apply it in a top-down way to determine what ought to be a crime. Or one might begin with a pre-existing concept in our legal or ordinary discourse and seek to unearth its ethical presuppositions, holding true to most of its current conceptual features. Still others might be interested in the institutional aspects of law, reasoning that criminal law is not solely about moral philosophy but also about political philosophy, thereby implicating questions of the state. And hybrids of the political and moral questions appear when the state may use only some, but not other, reasons to criminalize. All of these approaches are on display in this handbook.

We have chosen to order this handbook alphabetically by topic, and each chapter is a stand-alone entry on a particular subject within criminal law. We believe that this organization will be the most accessible approach for those who are likely to read this handbook to gain knowledge about a subject or two. Nevertheless, we will use this introduction to impose a different structure (or perhaps simply a structure) on the myriad entries that follow. It is our hope that this introduction will provide a useful guide to how one can approach the wide-ranging, disparate questions of applied ethics and the criminal law.

Notably, this introduction does not impose the “typical” structure on the criminal law. Many criminal law theorists approach the criminal law by dividing the criminal law between the general and special parts. The special part is the actual criminal offenses, such as rape, murder, and theft. The general part, as its label denotes, applies generally. This part includes the voluntary act requirement, the definition of the mental states that crimes can contain, causation, as well as provisions for attempts and accomplice liability that apply across offenses. But this handbook, which deals with applied ethics, is not the best venue to pursue the philosophy of action inherent in the voluntary act requirement, or the philosophy of mind underpinning various mental states, or the metaphysics of causation. Some of the general part topics do relate to applied ethics, as, for example, the entries on inchoate criminality and complicity reveal. But in our view, a systematic approach to applied ethics and the criminal law cannot be best discerned through the traditional general/special part division of labor.

Instead, particularly for the reader unacquainted with criminal law theorizing, we suggest a different structure. We begin first with the “big picture” questions about the relationship between morality and criminalization, in terms of both whether the law should reflect morality and how we should deal with uncertainty about what morality requires. From here, we turn to the wide-ranging criminalization questions presented by many of the entries in this handbook, and we juxtapose the top-down and bottom-up strategies imposed by the authors. We then note how some crimes that appear to be stand alone are instantiations of more general principles and how different crimes ultimately depend on the same underlying theoretical presuppositions or otherwise draw connections to other debates within criminal law. Next, we turn to the notions of responsible agency upon which just punishment depends. The questions of who counts as a legal person for punishment, when can a person be held responsible, and how particular features of a person’s psychology or circumstances affect just punishment are considered. Finally, we direct our gaze to punishment and the role of the state, asking about the mode and amount of punishment, as well as the justness of the state’s imposition of punishment.

Criminalization

Morality and Criminalization

Many of the entries within this handbook are concerned with particular crimes and what justifies their criminalization. What is the role of moral wrongfulness in justifying the prohibition of a particular act? Criminal law theorists continue to debate the appropriate reasons to criminalize, ranging from forms of legal moralism, that require, as either a necessary or sufficient condition, that the behavior be morally wrongful, to more harm-centered theories, that justify punishment based on harm to others, offense to others, or harm to self. The intricacies of these topics justify book-length treatments. James Edwards’ No Offense nicely explores the complexity of these questions at this high level of generality with respect to offensive behavior. The question is how an action’s offensiveness justifies criminalization. Interestingly, Edwards concludes that the justification for criminalization is neither that an act is offensive nor that it is wrong, but rather some further fact by virtue of which the act is offensive and wrong. Edwards also counterintuitively defends the proposition that sometimes offensiveness dictates against, not in favor of, criminalization, whereas lack of offense may dictate in criminalization’s favor.

But even when moral wrongfulness directly bears on criminalization, how do we even know if something is wrong? Drawing on a new line of inquiry within applied ethics, Christian Barry and Patrick Tomlin’s Moral Uncertainty and the Criminal Law asks how we should approach criminalization (and punishment) if there is doubt that an act is morally wrong. After demonstrating the complexity of this question for individuals determining what they ought to do, Barry and Tomlin address the modifications that ought to be made as we ask this question through the prism of the state.

Should law and morality diverge? Two chapters address different aspects of this question. In Role Morality, Leo Katz and Alvaro Sandroni ask whether a defense attorney is subject to a special role morality that permits her to violate ordinary moral standards in representing a defendant. How can a lawyer assist the client without being complicit in his wrong? How can we condone the lawyer while condemning the criminal without inviting “moral combat?” How should we understand the duties owed to a “personless corporation?” Katz and Sandroni think that there can be special role moralities, that they are, in their terms, “non-option stratified,” and that if law and morality were option stratified, we could not condone role morality. However, their non-option-stratified law and morality allows role morality as it produces interesting forms of intransitivity among possible choices. And, in Ignorance of Law: How to Conceptualize and Maybe Resolve the Issue, Douglas Husak quarrels with the long-accepted criminal law maxim that ignorance of the law is not an excuse. Instead, he argues that legal ignorance should generally be treated the same way as is factual ignorance. If the defendant’s ignorance is culpable, that culpability should be taken into account the same way as is culpability regarding the nature or consequences of the criminal act. And if ignorance of the law is nonculpable, the legally ignorant defendant should be regarded as nonculpable.

These chapters explore the relationship between law and morality on a more abstract level, as opposed to focusing on discrete crimes. They require us to ask whether moral wrongfulness and our beliefs about such wrongfulness bear on what and when the state should punish.

Analyzing Crimes: Why Prohibit?

Ideally, when one seeks to criminalize certain conduct, one would understand the nature of the conduct and have clear ideas about what justifies punishing it and how. That is, criminalization would proceed in a top-down manner, thereby applying ethics. Many of the entries in this handbook attend to specific crimes and what justifies their prohibition.

A useful glimpse at ideal pre-criminalization theorizing is provided in Mary Anne Franks’ The Crime of Revenge Porn chapter. The recent use of “revenge porn,” or as Mary Anne Franks would have us call it, “nonconsensual pornography,” has challenged legislators and theorists to think about what makes this problematic behavior of concern to the criminal law. Franks’ The Crime of Revenge Porn demonstrates how we ought to look at the criminalization question, from understanding the conduct, to explaining why it ought to be criminalized, to working through the ultimate features of the defense, to engaging with the struggles with understanding how and why laws pass and fail.

In most instances, however, legislatures rarely have clear ideas about what they are prohibiting and why. Rather, theorists often engage in ex post inquiries, searching for the sorts of ideas that can justify a particular law. This traditional method of inquiry is clearly on display in Heidi Hurd’s Crimes Against Animals. Hurd’s contribution is an example of a systematic inquiry in which a scholar probes every justification for criminalization to determine how and why something ought to be punished. In light of Hurd’s searching and scathing critique of existing laws, we are left wondering why we so inconsistently protect animals and whether this protection is truly about animals at all or whether it is simply about protecting humans from themselves and each other.

Like Hurd’s attempt to locate animal cruelty statutes within the various justifications for criminalization, Kenneth Simons systematically analyzes various arguments about hate crimes. Simons’ Hate (or Bias) Crime Laws scrutinizes when and why hate crimes should be punished differently than other offenses. He thus works through reasons to think there is greater harm, a different wrong, or more culpability and then examines how one would frame the crime so as to speak to these potential reasons for differential punishment. Although both of these entries focus on particular laws, they take a somewhat top-down approach in that they apply the different categories of moral thinking, displaying a willingness to give up the existing law in favor of better moral accounts.

An alternative approach to the normative question is to start with the law that we have and try to see what theories both fit and justify the law. This analysis is more bottom-up than top-down. One exemplar of this sort of approach is Deborah Hellman’s Understanding Bribery. What makes trading money for a vote a bribe but trading a vote for a vote permissible logrolling? To Hellman, bribery is best understood as an exchange across domains that is prohibited by the relevant decision-maker. This allows us to unearth what those things we take to be “bribes” have as their common core. In a similar vein, in Incest, Stuart P. Green offers what he calls a “normative reconstruction” of the law of incest. He first looks at incest as a complex cultural taboo, then considers the various ways the criminal law has dealt with it. He then asks whether incest with juveniles substantially duplicates statutory rape laws and whether incest laws should be applied to putatively consensual acts between adults. And in a similar effort, in Blackmail: A Crime of Paradox and Irony, Peter Westen takes up, as have countless others before him, the paradoxical crime of blackmail—what its various definitions have been historically and what Westen believes it should be limited to as a normative matter. Westen painstakingly reviews a multitude of statutory definitions of the offense and the defenses thereto, and he then confronts head-on the so-called paradox of blackmail—that its illegality consists of a threat to make a legal disclosure to induce a transaction that is also legal. He concludes that blackmail should be restricted to threats that are criminal or tortious, rejecting approaches of others that focus on the defendant’s purpose.

Finally, even when starting with the crime as the point of inquiry, there are those crimes that seem to evade precise definitions themselves. In Fraud, Samuel Buell examines the concept of fraud, which he argues escapes being reduced by criminal law into anything resembling bright-line rules. Fraud, says Buell, is really a common law crime, despite the fiction that our law has eliminated such things. He illustrates his thesis by canvassing a number of white-collar crimes and prosecutions.

These entries, then, approach the same question from two distinct methodologies. Some theorists are inclined to get the morality right, thus leading us to condemn our existing legal practices. In contrast, others are seeking to find the morality that undergirds the pre-existing legal practice. Although both are willing to trim the law when necessary, the former privileges the moral and the latter privileges law.

Drawing Connections

There are also interconnections between criminalization questions. Some crimes do not stand alone, but rather operate within a backdrop of other crimes and justifications.

Consider the entries by Andrew Cornford and Margo Kaplan. In Inchoate Criminality, Cornford takes up the criminalization of acts that are merely preparatory to committing a crime or an attempted crime. Although Cornford takes seriously various skeptical arguments against the creation of preparatory crimes, he believes that the issue is more complicated than the skeptics aver, and that the creation of some such crimes is justified. Kaplan’s Sex Offenses and the Problem of Prevention questions whether laws against enticement and solicitation of minors can be justified as inchoate offenses. She then probes the potential justifications for the commitment of sexually violent predators, including detaining the dangerousness, self-defense, and punishment. Hence, in analyzing inchoate offenses, one discovers that other crimes that appear to be aimed at a specific wrong are, in fact, inchoate offenses in disguise.

Similarly, Alec Walen and Tom Dannenbaum take up related questions. As Walen argues in Targeted Killing and the Criminal Law, the justifiability of targeted killing depends upon whether it is justified as an act of self-defense. Hence, Walen introduces novel ways to think about why one may kill someone to eliminate the threat he poses, how confident the defender must be, and why the selection of the target must also pass moral muster. Just as Walen writes about targeted killing against the backdrop of individual self-defense, Dannenbaum’s War Crimes and Just War Theory looks at war crimes more broadly against the backdrop of just war theory. In recent years, revisionists have claimed that the morality of war is reducible to the morality of individual self-defense, and both revisionists and their interlocutors have assumed that this creates a chasm between existing law and morality. Dannenbaum explores the criminalization questions, ultimately arguing that the divide is far narrower than theorists suppose.

Accomplice liability necessarily entails the conjunction of the accomplice’s acts and another’s crime. In Complicity, Antje du Bois-Pedain asks when should an actor who does not herself commit the actus reus of a crime be held responsible for the criminal act of another. Du Bois-Pedain describes the two modes of complicitous involvement—joint enterprises and accessorial participation. She rejects the idea that complicity is based on causation, a view most recently defended by Michael Moore, and defends a view based on the accomplice’s influence on the principal actor. She then examines what responsibility the accomplice should bear when the principal actor’s crime is more serious than the accomplice contemplated.

Finally, some connections are not between crimes, but between different criminal law approaches. In Affirmative Consent, Kevin Cole analyzes the approaches and puzzles with respect to consent in the criminal law. One important strain of his argument is that questions of mens rea and, in particular negligence, are connected to questions about proxy crimes. Hence, through the prism of one question, we can see that seemingly disparate questions within criminal law are interconnected. In addition, as Cole and one of us (Alexander) argue in Reckless Beliefs, sometimes the connections are problematic. Through the prism of rape reform, Alexander and Cole demonstrate that legislatures sometimes create conceptual problems by positing mental states that simply are not possible.

Many of the entries in this handbook thus address specific offenses. With respect to these offenses, a reader can see distinct methodologies as the authors seek to best understand criminal statutes and can see significant dependencies and connections between crimes.

Responsible Agency

Even when it is appropriate to criminalize a particular act, it may, nevertheless, be inappropriate to punish any particular offender. Although as a matter of substantive law many of the questions addressed are often treated as a question of when an agent should be excused, these are ultimately questions about the idea of responsible agency that undergirds the criminal law.

Undermining Responsibility

As Stephen Morse explains in Neuroscience and Criminal Law: Perils and Promises, new scientific advances raise a host of concerns in the criminal c...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• Part I. Addiction
• Part II. Affirmative Consent
• Part III. Animals
• Part IV. Beyond a Reasonable Doubt
• Part V. Blackmail
• Part VI. Bribery
• Part VII. Civil Disobedience
• Part VIII. Complicity
• Part IX. Corporate Punishment
• Part X. Death Penalty
• Part XI. Fraud
• Part XII. Hate Crimes
• Part XIII. Ignorance of Law
• Part XIV. Incest
• Part XV. Inchoate Criminality
• Part XVI. Insanity
• Part XVII. Mitigation
• Part XVIII. Moral Uncertainty
• Part XIX. Neuroscience
• Part XX. Offensive Conduct
• Part XXI. Political Philosophy and Punishment
• Part XXII. Proportionality and Punishment
• Part XXIII. Prostitution
• Part XXIV. Race
• Part XXV. Reckless Beliefs
• Part XXVI. Revenge Porn
• Part XXVII. Role Morality
• Part XXVIII. Sex Offenses and Sexually Violent Predators
• Part XXIX. Stand Your Ground
• Part XXX. Targeted Killing
• Part XXXI. War Crimes
• Back Matter