STANFORD LAW SCHOOL A Canon of the criminal law eisberg Stanford Law school orking Paper No 10 May,2000 Stanford Public law and Legal theory Working Paper Series Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford. California 94305-8610 So This paper can be downloaded without charge from the ocial Science Research Network Electronic Paper Collection http:/papers.ssrn.com/paper.taf?abstractid=231952
S T A N F O R D L A W S C H O O L A Canon of the Criminal Law by Robert Weisberg Stanford Law School Working Paper No. 10 May, 2000 Stanford Public Law and Legal Theory Working Paper Series Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, California 94305-8610 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/paper.taf?abstract_id=231952
A Canon of the criminal lay Robert Weisberg Stanford Law School I write in the imperative(more modestly, in the exhortative) to one who has asked what one must read to understand our criminal law. And since this essay will address the elationship between desert and utility, let"canon"here mean a combination of those works most deserving to be read for their merit and those most useful to read, even as only data(though crucial data Few associate Blackstone with the criminal law but read the section of his Commentaries on"Public Wrongs. 1 You will be chastened: However much we believe in elemental principles, we are all probably anti-Langdellian enough to be embarrassed by the near sufficiency of Blackstone in laying out, over two centuries ago, the fundamentals of criminal jurisprudence and the elements of major crimes. Perhaps most strikingly, Blackstone quickly recognizes the main problem in generating prescriptive principles of criminal liability. He posits the various potential purposes of criminal punishment, and he recognizes that any combination of two or more of them will thwart any very systematic formula for correlating crime to punishment. And he makes no effort to finesse the problem by suggesting any easy pluralism I William Blackstone, IV Commentaries on the Laws of England( George Sharswood, ed 1908)
1 A Canon of the Criminal Law Robert Weisberg Stanford Law School I write in the imperative (more modestly, in the exhortative) to one who has asked what one must read to understand our criminal law. And since this essay will address the relationship between desert and utility, let "canon" here mean a combination of those works most deserving to be read for their merit and those most useful to read, even as only data (though crucial data). Few associate Blackstone with the criminal law, but read the section of his Commentaries on “Public Wrongs.”1 You will be chastened: However much we believe in elemental principles, we are all probably anti-Langdellian enough to be embarrassed by the near sufficiency of Blackstone in laying out, over two centuries ago, the fundamentals of criminal jurisprudence and the elements of major crimes. Perhaps most strikingly, Blackstone quickly recognizes the main problem in generating prescriptive principles of criminal liability. He posits the various potential purposes of criminal punishment, and he recognizes that any combination of two or more of them will thwart any very systematic formula for correlating crime to punishment. And he makes no effort to finesse the problem by suggesting any easy pluralism. 1William Blackstone, IV Commentaries on the Laws of England (George Sharswood, ed. 1908)
For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means, since there may be unlawful methods of enforcing obedience even to the justest laws... Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of conscience and humanity. 2 Blackstone worries over punishments for inchoate crimes, where culpability exceeds harm. He rejects the lex talionis for most crimes because sometimes it fails to explain the punishment--i.e, the"execution of a needy decrepit assassin "is hardly recompense for the murder of a worthy youth, and, contrarily, because sometimes the punishment should exceed the injury, "especially as the suffering of the innocent is past and irrevocable, [while] that of the guilty is future, contingent, and liable to be escaped or evaded. "3 Thus recognizing that rational punishment cannot escape contradiction, Blackstone proceeds to catalog elements of crimes and issues of interpretation that leave little for successors to amend He recognizes that no abstract notion of a "reasonable person"can capture the variety of impassioning circumstance The age, education, and character of the offender: the repetition(or therwise)of the offense; the time, the place, the company, wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime 4 2Id. at 8 3 Id. at 12
2 For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. . . . . Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of conscience and humanity.2 Blackstone worries over punishments for inchoate crimes, where culpability exceeds harm. He rejects the lex talionis for most crimes, because sometimes it fails to explain the punishment--i.e., the "execution of a needy decrepit assassin" is hardly recompense for the murder of a worthy youth, and, contrarily, because sometimes the punishment should exceed the injury, "especially as the suffering of the innocent is past and irrevocable, [while] that of the guilty is future, contingent, and liable to be escaped or evaded."3 Thus recognizing that rational punishment cannot escape contradiction, Blackstone proceeds to catalog elements of crimes and issues of interpretation that leave little for successors to amend. He recognizes that no abstract notion of a “reasonable person” can capture the variety of impassioning circumstances: The age, education, and character of the offender: the repetition (or otherwise) of the offense; the time, the place, the company, wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime.4 2Id. at 8. 3 Id. at 12. 4Id. at 14
He heroically assays the problem of defining murder in abstract terms, recognizing that malice"is both an orginary concept and yet also merely a name for a collection of types of moral and mental conditions which, by common intuition, seem to merit a similar degree of punishment.5 He recognizes that in laying out the terms of mental and moral culpability, one can establish ends of the culpability continuum at careless accidents and premeditated harm. 6 But Blackstone knows we still have to face the convergence of the key concerns about severity of punishment on a collection of acts that exhibit what we now call recklessness--that subtle mid-point on the continuum, that elusive condition of willingness to bear the risk of antisocial harm for antisocial purposes. 7 You will find Blackstone asking all the key questions: How do we generate consistent rules on the basis of inconsistent premises? What manifestations of character merit moral condemnation How do we avoid degrading character into a mere sum of acts? Why should it matter whether a criminal causes harm? Because if he has caused harm he deserves punishment or because if he caused harm then punishing him will prevent future harm? If we do require harm, how can one volitional person cause another to exercise his volition to commit crime? And so most generally, Blackstone recognizes that criminal law cannot help but worry over a fundamental agony of liberalism: How do we reconcile the deserved with the useful? Blackstone 's questions underlie the effort to sustain the legal authority of the liberal state, a state in which the government may engage in force and violence against individuals who break or threaten a social contract so severely as to merit that higher 5ld.at193-95.198
3 He heroically assays the problem of defining murder in abstract terms, recognizing that "malice" is both an orginary concept and yet also merely a name for a collection of types of moral and mental conditions which, by common intuition, seem to merit a similar degree of punishment.5 He recognizes that in laying out the terms of mental and moral culpability, one can establish ends of the culpability continuum at careless accidents and premeditated harm.6 But Blackstone knows we still have to face the convergence of the key concerns about severity of punishment on a collection of acts that exhibit what we now call recklessness--that subtle mid-point on the continuum, that elusive condition of willingness to bear the risk of antisocial harm for antisocial purposes.7 You will find Blackstone asking all the key questions: How do we generate consistent rules on the basis of inconsistent premises? What manifestations of character merit moral condemnation? How do we avoid degrading character into a mere sum of acts? Why should it matter whether a criminal causes harm? Because if he has caused harm he deserves punishment or because if he caused harm then punishing him will prevent future harm? If we do require harm, how can one volitional person cause another to exercise his volition to commit crime? And so most generally, Blackstone recognizes that criminal law cannot help but worry over a fundamental agony of liberalism: How do we reconcile the deserved with the useful? Blackstone's questions underlie the effort to sustain the legal authority of the liberal state, a state in which the government may engage in force and violence against individuals who break or threaten a social contract so severely as to merit that higher 5Id. at 193-95. 198. 6Id. at 26. 7Id. at 198
form of sanction called punishment. In so doing, the criminal law must respect the volitional capacity of individuals. Arguably, it can punish only where in some sense the antisocial action is volitional. It may punish in that circumstance, and from the Kantian perspective, it must punish in that circumstance, because not to do so is to disrespect the power of individuals to break a contract, and thus to devalue our civilization-and soul saving capacity to make and fulfill a contract. But what has that do do with more mundane social utility? And what happens when mundane social utility becomes the dominant, indeed, exalted end of punishment? Read Bentham's Theory of legislation, which is concerned that punishment may be unfair, that it may be"inefficacious, when it acts on those who cannot or will not fear criminal sanctions, and also that it is potentially"too expensive"in light of its social costs le Ist. Evil of coercion. It imposes a privation more or less painful according to the degree of pleasure which the thing forbidden has the power of conferring. 2nd. The sufferings caused by the punishment whenever it is actually carried into execution. 3rd. Evil of apprehension suffered by those who have violated the law or who fear a prosecution in consequence. 4th. Evil of false prosecutions. This inconvenience appertains to all penal laws, but particularly to laws which are obscure and to imaginary offences .. 5th. Derivative evil suffered by the parents or friends of those who are exposed to the rigour of the law. ...8 8Jeremy Bentham, The Theory Of Legislation 322-324, 338(1950)
4 form of sanction called punishment. In so doing, the criminal law must respect the volitional capacity of individuals. Arguably, it can punish only where in some sense the antisocial action is volitional. It may punish in that circumstance, and from the Kantian perspective, it must punish in that circumstance, because not to do so is to disrespect the power of individuals to break a contract, and thus to devalue our civilization-and soulsaving capacity to make and fulfill a contract. But what has that do do with more mundane social utility? And what happens when mundane social utility becomes the dominant, indeed, exalted end of punishment? Read Bentham's Theory of Legislation, which is concerned that punishment may be unfair, that it may be "inefficacious," when it acts on those who cannot or will not fear criminal sanctions, and also that it is potentially "too expensive" in light of its social costs, i.e.: --1st. Evil of coercion. It imposes a privation more or less painful according to the degree of pleasure which the thing forbidden has the power of conferring. 2nd. The sufferings caused by the punishment, whenever it is actually carried into execution. 3rd. Evil of apprehension suffered by those who have violated the law or who fear a prosecution in consequence. 4th. Evil of false prosecutions. This inconvenience appertains to all penal laws, but particularly to laws which are obscure and to imaginary offences. ... 5th. Derivative evil suffered by the parents or friends of those who are exposed to the rigour of the law. ...8 8Jeremy Bentham, The Theory Of Legislation 322-324, 338 (1950)
Note that this is blackstone retold in what is really only slightly different form--with an express analytical vocabulary of cost-benefit analysis But to commit to instrumental behavioral control and economic effiiciency as the purposes of punishment is not necessarily to adopt a simplified view of the human nature of the criminal. Effective and efficient behavioral control requires understanding and manipulating the whole person, including the inner psyche. And so the ambitious utilitarian, even if ultimately concerned only with outward behavior, must enter the soul and, to a critic of theory this means that the theorist of utilitarianism must"invent"its human object Thus, now turn to Foucault's Discipline and Punish, and do not fear bein ostentatiously chic, because this is one Foucault book that undeniably speaks substance and common historical sense. Foucault shows us how the Benthamite approach to crime ultimately overcame the earlier jurisprudence of violent punishment. 9 Between 1760 and 1840, says Foucault, Europe and the United States saw a"redistribution"of"the entire economy of punishment "As modern codes were drawn up across Europe, one decisive change in penal justice occurred: the end of torture as a public spectacle. Foucault reluctantly acknowledges that this change could be merely viewed as part of the process of"humanization, that it may be a mere footnote to such great reforms as the formulation of explicit, general codes and unified rules of procedure with the almost universal adoption of the jury system, the definition of the 9Michel Foucault, Discipline And Punish: The Birth Of The Prison
5 Note that this is Blackstone retold in what is really only slightly different form--with an express analytical vocabulary of cost-benefit analysis. But to commit to instrumental behavioral control and economic effiiciency as the purposes of punishment is not necessarily to adopt a simplified view of the human nature of the criminal. Effective and efficient behavioral control requires understanding and manipulating the whole person, including the inner psyche. And so the ambitious utilitarian, even if ultimately concerned only with outward behavior, must enter the soul, and, to a critic of theory, this means that the theorist of utilitarianism must "invent" its human object. Thus, now turn to Foucault's Discipline and Punish, and do not fear being ostentatiously chic, because this is one Foucault book that undeniably speaks substance and common historical sense. Foucault shows us how the Benthamite approach to crime ultimately overcame the earlier jurisprudence of violent punishment.9 Between 1760 and 1840, says Foucault, Europe and the United States saw a "redistribution" of "the entire economy of punishment." As modern codes were drawn up across Europe, one decisive change in penal justice occurred: the end of torture as a public spectacle. Foucault reluctantly acknowledges that this change could be merely viewed as part of the process of "humanization,” that it may be a mere footnote to such great reforms as the formulation of explicit, general codes and unified rules of procedure, with the almost universal adoption of the jury system, the definition of the 9Michel Foucault, Discipline And Punish: The Birth Of The Prison (1977)
essentially corrective character of the penalty and the tendency .. to adapt punishment to the individual offender. 10 But he finds something subtler and more important in the end of torture: The body as the major target of penal repression disappeared, and the new object of penal policy became the soul, "the heart, the thoughts, the will, the inclinations. "11 So read Foucaults famous description of the new utilitarian prison, with its goals of incarceration and ehabilitation, and its design of a new individual Bentham's Panopticon is the architectural fl gure of this Each individual, in his place, is securely confined to a cell from which he is seen from the front by the supervisor; but the side walls prevent him from coming into contact with his companions He is seen, but he does not see; he is the object of information, never a subject in communication. The crowd, a compact mass, a locus of multiple exchanges, individualities merging together, a collective effect, is abolished and replaced by a collection of separated individualities. From the point of view of the guardian, it is replaced by a multiplicity that can be numbered and supervised; from the point of view of the inmates, by a sequestered and observed solitude(bentham, 60-64) Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.... 12 10 Id at 7-8 lld.at8,l6; see id,at3,6-8,16,29-30,200-206,217,221. 12Id.at200-0 6
6 essentially corrective character of the penalty and the tendency . . . to adapt punishment to the individual offender.10 But he finds something subtler and more important in the end of torture: "The body as the major target of penal repression disappeared," and the new object of penal policy became the soul, "the heart, the thoughts, the will, the inclinations."11 So read Foucault's famous description of the new utilitarian prison, with its goals of incarceration and rehabilitation, and its design of a new individual: Bentham's Panopticon is the architectural figure of this composition. ... Each individual, in his place, is securely confined to a cell from which he is seen from the front by the supervisor; but the side walls prevent him from coming into contact with his companions. He is seen, but he does not see; he is the object of information, never a subject in communication. . . . . The crowd, a compact mass, a locus of multiple exchanges, individualities merging together, a collective effect, is abolished and replaced by a collection of separated individualities. From the point of view of the guardian, it is replaced by a multiplicity that can be numbered and supervised; from the point of view of the inmates, by a sequestered and observed solitude (Bentham, 60-64). Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. . . .12 10 Id. at 7-8. 11Id. at 8, 16; see id, at 3, 6-8, 16, 29-30, 200-206, 217, 221. 12Id. at 200-01
Foucault views this"panoptic modality of power"as the "other, dark side of the bourgeoisie' s establishment of an explicit, coded and formally egalitarian juridical ramework, made possible by the organization of a parliamentary, representative regime 13 Certainly thecrimes and ' on which judgement is passed are juridical objects defined by the code, but judgement is also passed on th passions, instincts, anomalies, infirmities, maladjustments, effects of environment and heredity; acts of aggression are punished, so also through them, aggressivity; rape, but at the same time perversions; murders, but also drives and desires .. the knowledge of the criminal, one's estimation of him, what his known about the relations between him, his past and his crime, and what might be expected of him in the future. 14 With this new psychology of punishment in mind, we can return to the conventions of legal doctrine to see how the psychological subject of economical punishment emerges in a legal typology of the mental and the punitive. Examine George Fletcher,s work on the history of theft offenses, as it traces the gradual shift toward greater emphasis on mental and moral culpability than on manifest act or harm. 15 As theft law developed at the turn of the Nineteenth Century, the actor's wrong came to have less to do with the manner of acquiring physical control over the object than the intent of the actor as evidenced by his unauthorized exercise of control over the property. You can then link larceny law to the very changes Foucault describes the nineteenth centurys 13Id.at221-22 14Id.at17-18 15George Fletcher, The Metamorphosis of Larceny, 89 Harv. L. Rev. 469(1976)
7 Foucault views this "panoptic modality of power" as the “other, dark side of the bourgeoisie's establishment of an explicit, coded and formally egalitarian juridical framework, made possible by the organization of a parliamentary, representative regime."13 Certainly the 'crimes' and 'offences' on which judgement is passed are juridical objects defined by the code, but judgement is also passed on the passions, instincts, anomalies, infirmities, maladjustments, effects of environment and heredity; acts of aggression are punished, so also through them, aggressivity; rape, but at the same time perversions; murders, but also drives and desires . . . the knowledge of the criminal, one's estimation of him, what his known about the relations between him, his past and his crime, and what might be expected of him in the future.14 With this new psychology of punishment in mind, we can return to the conventions of legal doctrine to see how the psychological subject of economical punishment emerges in a legal typology of the mental and the punitive. Examine George Fletcher's work on the history of theft offenses, as it traces the gradual shift toward greater emphasis on mental and moral culpability than on manifest act or harm.15 As theft law developed at the turn of the Nineteenth Century, the actor's wrong came to have less to do with the manner of acquiring physical control over the object than the intent of the actor as evidenced by his unauthorized exercise of control over the property. You can then link larceny law to the very changes Foucault describes: the nineteenth century's 13 Id. at 221-22. 14Id. at 17-18. 15George Fletcher, The Metamorphosis of Larceny, 89 Harv. L. Rev. 469 (1976)
legislative codification of criminal law, the development of professional police forces, and the shift from corporal and capital punishment of crime to reliance on incarceration in penitentiaries. And look below the vocabulary to see what is after all a rather minor elision from the postmodernist notion of"the subject"to the more comfortable and nerely modern notion of the subjective [the subjective]conception, the intent to violate a legally protected interest constitutes the core of the crime.. The critical implication of subjective criminality is that an act "quite innocent on its face"may qualify as a criminal act. It does not matter whether mounting the horse [picking up the cravats or receiving the bails]. incriminates the actor. We trust the police to elicit other forms of evidence to establish the required intent. Confessions are good evidence, as are admissions to friends of the suspect. prio convictions will do, as will secretive conduct after the incident.. [ By contrast, the older] principle of manifest criminality rejects the possibility of convicting someone of larceny .. on the basis of an act not incriminating on Most modern statutes have incorporated these developments under a unified definition of theft, focusing on the thiefs intent and his exercise of dominion and control over the property. Where Foucault might speak of the pragmatic creation of a proper type of moral mentality for punitive discipline, Fletcher speaks more modestly of the versatility of new doctrines of mens rea in defining and then sanctioning culpability 1 6George Fletcher, Manifest Criminality, Criminal Intent, and the Metamorphosis of Lloyd Weinreb, 90 Yale l.J.119,338(1976 8
8 legislative codification of criminal law, the development of professional police forces, and the shift from corporal and capital punishment of crime to reliance on incarceration in penitentiaries. And look below the vocabulary to see what is after all a rather minor elision from the postmodernist notion of "the subject" to the more comfortable and merely modern notion of "the subjective." Under . . . [the subjective] conception, the intent to violate a legally protected interest constitutes the core of the crime. . . . The critical implication of subjective criminality is that an act "quite innocent on its face" may qualify as a criminal act. It does not matter whether mounting the horse [picking up the cravats or receiving the bails] . . incriminates the actor. We trust the police to elicit other forms of evidence to establish the required intent. Confessions are good evidence, as are admissions to friends of the suspect. Prior convictions will do, as will secretive conduct after the incident.. . . [By contrast, the older] principle of manifest criminality rejects the possibility of convicting someone of larceny. . . on the basis of an act not incriminating on its face.16 Most modern statutes have incorporated these developments under a unified definition of theft, focusing on the thief's intent and his exercise of dominion and control over the property. Where Foucault might speak of the pragmatic creation of a proper type of moral mentality for punitive discipline, Fletcher speaks more modestly of the versatility of new doctrines of mens rea in defining and then sanctioning culpability. 16George Fletcher, Manifest Criminality, Criminal Intent, and the Metamorphosis of Lloyd Weinreb, 90 Yale L.J. 119, 338 (1976)
In addition to its intuitive plausibility, the standard of intent has important olitical significance in generating a widely acceptable theory of criminal sanctions. Unlike the issues of harm and objective criminality, the concept of intent appeals both to protectionists, whose central concern is identifying dangerous persons, and retributivists, whose focus is punishing the More significantly, neither retributivists nor traditionalists have seen a reason to criticize the ascendancy of intent, precisely because it seems so closely related to moral blameworthiness. As the common denominator of contemporary theory, the concept of criminal intent provides a foundation for the ideologically fragile system of criminal justice to enjoy wide support. 17 But however versatile the new rules of mental and moral culpability, they left courts with heavy burdens of interpretation and rhetoric. To appreciate the early modern efforts to refine these culpability standards, scan the seriatim opinions in such classic and quaint British cases as Faulkner and Prince, as they descant upon the nuances of subjective criminality --[]n order to establish the charge.. the intention of the accused forms an element in the crime to the extent that it should appear that the defendant intended to do the very act with which he is charged, or that it was the ecessary consequence of some other felonious or criminal act in which he was engaged, or that having a probable result which the defendant foresaw, or ought to have foreseen, he, nevertheless, persevered in such other 17Fletcher, supra note 11, at 525
9 In addition to its intuitive plausibility, the standard of intent has important political significance in generating a widely acceptable theory of criminal sanctions. Unlike the issues of harm and objective criminality, the concept of intent appeals both to protectionists, whose central concern is identifying dangerous persons, and retributivists, whose focus is punishing the blameworthy. . . . More significantly, neither retributivists nor traditionalists have seen a reason to criticize the ascendancy of intent, precisely because it seems so closely related to moral blameworthiness. As the common denominator of contemporary theory, the concept of criminal intent provides a foundation for the ideologically fragile system of criminal justice to enjoy wide support.17 But however versatile the new rules of mental and moral culpability, they left courts with heavy burdens of interpretation and rhetoric. To appreciate the early modern efforts to refine these culpability standards, scan the seriatim opinions in such classic and quaint British cases as Faulkner and Prince, as they descant upon the nuances of subjective criminality: --[I]n order to establish the charge . . . the intention of the accused forms an element in the crime to the extent that it should appear that the defendant intended to do the very act with which he is charged, or that it was the necessary consequence of some other felonious or criminal act in which he was engaged, or that having a probable result which the defendant foresaw, or ought to have foreseen, he, nevertheless, persevered in such other 17Fletcher, supra note 11, at 525