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As I discussed in my previous post , the job of criminal law is to reassure us that we will not be

victimized when we leave the safety of our homes and families and engage with the wider world.
Such reassurance is necessary for our economy to work and for us to be able to enjoy the
individual freedoms so exalted by our culture. But the central dilemma of criminal law is this:
criminal law and its enforcement not only function as sources of reassurance, but as threats in
their own right-producers of fear that may undermine, rather than enhance, people's sense of
security and willingness to engage with the wider world. Every time the criminal-justice system
acts against a citizen, it causes harm in some form or another. Viewing this harm, some will feel
reassured-if the system, for instance, is seen as thereby deterring future harms-but others will
feel frightened. Indeed, the very essence of deterrence is fright. There is no unalloyed good
when the system acts. The bitter always accompanies the sweet. This is not to say that the
good and bad always counterbalance one another perfectly. It is certainly possible to have more
good than bad, and, indeed, the system's aim should be to maximize the net of the one over the


other. If you face criminal charges, begin the search for talented representation now. The stakes
are certainly high. We have ideas for how to uncover the rightcriminal defense attorney in
Orlando, our suggestion would certainly be to interview an attorney at Grozinger Law, but go
beyond that to find exactly the right fit. There are many dimensions to this central challenge
facing the criminal-justice system, touching, for instance, on police administration, corrections
administration, and sentencing law. At present, my concern is with the structure of substantive
criminal law. From the social trust standpoint, substantive criminal law is subject to four
overlapping vices. The first is vagueness. For instance, some criminal laws make liability turn on
whether the defendant has acted unreasonably. But unreasonability lies in the eyes of the
beholder. This is a vague standard, and it is hard to say when exactly a person crosses the line
into criminal conduct. Under vague laws, liability may catch some people by surprise, which
enhances fear, rather than trust. To some extent, the checks and balances in criminal
procedure may mitigate the problems with vague laws. In principle, there is no liability unless a
police officer, prosecutor, and judge or jury concur that the law has been violated. If all agree
that the defendant has, for instance, acted unreasonably, then it seems likely that the
defendant, too, would have appreciated that he was on shaky ground at the time he acted-all
the more so when the ultimate trier of fact has determined, as it is supposed to in our system,
that the defendant crossed the crime line beyond a reasonable doubt. Perhaps such checks and
balances should give us reassurance that very few people will be caught off guard by criminal
liability, regardless of how the laws are written. But there can be problems with the checks and
balances, too. Note, for instance, that even an arrest without a formal charge, or a charge
without a conviction, can be a harrowing and stigmatizing experience. Note, too, concerns about
structural imbalances in the criminal-justice system, which may arguably drain the innocent until
proven guilty" principle of its practical force, especially when the defendant is poor (which is
usually the case). Note also that the vast majority of defendants plead guilty rather than going to
trial, even if they have plausible defenses. This results from a variety of factors, including the
financial cost of going to trial, the benefits offered through plea bargains, and the common
practice of imposing longer sentences on defendants who don't plead guilty. With all of the
pressure placed on defendants to plead, we may not be able to count on juries functioning as
an effective check on aggressive prosecutorial interpretations of vague laws. Finally, in our
diverse society, we must appreciate that even if a police officer, a prosecutor, and twelve
members of a jury agree that a defendant has crossed the line and violated a vague law, that
conclusion may reflect the particular cultural values, beliefs, and interests of the segments of
society that tend disproportionately to produce the criminal-justice system's decisionmakers.
People belonging to different social groups may draw the line of criminality differently. Even if
the ins" find reassurance in a conviction, the outs" may not share that view, and the net effect
on social trust and cohesion may be negative. Such concerns highlight the value of drawing the
criminal liability line with precision. On the other hand, this can be carried too far. For one thing,
a very specific criminal code that attempts to spell out all crimes in clear, objective terms will
inevitably fail to include a great deal of conduct that is quite harmful and disturbing, and such
gaps in the code may undermine public confidence in the criminal-justice system. For another, a
criminal code far longer and more detailed than current norms would be simply impenetrable to
laypeople, and may thus give rise to fair-notice problems that are just as great as with a vague
code. One possible way of striking a balance, which seems roughly consistent with current
norms, would be to strive for a relatively high level of specificity with the crimes that carry the
largest penalties, while also maintaining more generally worded crimes that carry lesser


penalties as a backstop (e.g., disorderly conduct). If the vaguer crimes end up sweeping in too
much, at least the damage done will be relatively light. A second major vice is to criminalize
conduct that is regarded as benign or a matter of entitlement by substantial segments of
society. The criminal law purports to speak in a moral voice. There is, or should be, a difference
between a tax that seeks to discourage a behavior-e.g., cigarette taxes-and a criminal
punishment that seeks to condemn a behavior. As I noted in my previous post, one of the basic
mechanisms by which the criminal law builds social trust is by reaffirming widely shared moral
values. However, the criminal law undermines its ability to function in this way-undermines its
moral credibility-when it punishes conduct that is not generally regarded as immoral. Instead,
the criminal law may come to be seen as a crude power play by the particular segments of
society who are in charge at the moment. This was, for instance, one of the key criticisms of the
national alcohol prohibition law of the 1920s. One response to this concern is again to invoke
checks and balances-it doesn't really matter that a law is written in an overly broad fashion
when police, prosecutors, judges, and jurors must exercise discretion before there are any
convictions. The persuasiveness of this response is subject to the same reservations noted
above. Another response is to invoke democratic values. If the people's elected representatives
choose to criminalize something they regard as immoral, then that is their prerogative. But just
because a faction has the votes to do something does not make that something good policy.
What if a legislative majority sold off all of a state's tangible assets in order to fund a
controversial moral crusade? We might rightly regard such a policy choice as poor stewardship
of the state's resources, crippling the ability of the state to perform core, noncontroversial
governmental functions. The criminal code's moral credibility is just another state asset that can
be lost to controversial causes when there is still plenty of noncontroversial work to be done.
Controversial moral values can be furthered through other legislative strategies-civil regulation,
taxation, education, subsidies-that are less damaging to those who find themselves on the
wrong side of the social conflict. A key principle that helps to save the criminal law from
becoming embroiled in conflicts over controversial social values (and that also helps the law to
avoid fair-notice problems) is this: criminal punishment should only be imposed for conduct that
either (1) caused some significant, tangible harm to a person's body or property, or (2) created a
significant, direct risk of such harm. To be sure, the terms are vague, and there is certainly room
to argue about whether particular conduct (say, driving with a very low level of alcohol in the
blood) satisfies the criteria. Additionally, it may be counterproductive to press this principle in an
absolutely inflexible way. There may be some conduct (e.g., appearing nude in a public park)
that is not physically harmful to anyone, but so deeply disturbing to so many people that the
criminal law would lose moral credibility by not prohibiting it. In such cases, though,
punishments should be relatively mild. A third major vice is to impose liability for conduct or
outcomes over which the defendant has little or no effective control. Imagine as extreme
examples laws that criminalized falling ill, or being left-handed, or fantasizing about shooting
certain noxious celebrities. If enforced, a criminal code with many such provisions would seem
arbitrary and fearsome indeed. One traditional principle that helps to avoid this third vice is the
voluntary act requirement-the requirement that criminal liability be based on some affirmative
act voluntarily performed. For instance, in general, there can be no liability for seizures or
sleepwalking. Another, more complicated (and more controversial) limiting principle is this: there
should be no liability unless there is subjective fault, i.e., unless the defendant was consciously
aware that he was creating or risking harm. There are concerns, however, that this principle
may create perverse incentives for people to bury their heads in the sand, or may reward liars,


or may prevent the criminal-justice system from taking action against people who are quite
significantly, if wholly unintentionally, dangerous. Such concerns may justify criminal liability in
the absence of subjective fault, but perhaps only if the penalties are relatively light. A fourth, and
final, major vice is disproportionality in punishment. Hardly anyone would disagree with the old
cliche that the punishment should fit the crime. Moreover, while there is much debate over
certain aspects of the proportionality ideal, there does seem broad consensus on at least two
key principles. First, the degree of punishment should vary with the degree of harm caused or
risked. A crime that causes death should be punished more severely than a crime that causes
only a broken limb, and a crime that causes a broken limb should be punished more severely
than a crime that causes only a loss of a few dollars. Second, intentional harms should be
punished more severely than accidental. Obviously, these principles overlap rather closely with
principles already discussed above and advance similar ends. To conclude this post, I've
identified four vices for the criminal law to avoid, but there are really two dominant themes in this
discussion. First, the criminal law should avoid surprises, both as to guilt and as to degree of
punishment. Second, the criminal law should avoid the perception that it is serving the interests
of particular social groups at the expense of other social groups. A criminal law successful on
both fronts seems unlikely to generate levels of fear and resentment that are deeply corrosive of
social trust.Long Thoughts in Criminal Law - Early 2015

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