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
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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).
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.
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.
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 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, 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).
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)
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.
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).
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).
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.
10
felonious or criminal act.18
--[A]ll questions of intention and malice are closed by the finding of the
jury, that the prisoner committed the act with which he was charged whilst
engaged in the commission of a substantive felony.. . . irrespective of all
refinements as to "recklessness" and "wilfulness. . . . 19
--The act forbidden is wrong in itself, if without lawful cause; I do not say
illegal, but wrong. I have not lost sight of this, that though the statute
probably principally aims at seduction for carnal purposes, the taking may
be by a female with a good motive. Nevertheless, although there may be
such cases, which are not immoral in one sense, I say that the act forbidden
is wrong.20
-- [Mens rea] exists where the prisoner knowingly does acts which would
constitute a crime if the result were as he anticipated, but in which the result
may not improbably end by bringing the offence within a more serious class
of crime. . . ..21
In their legalistic fussing over criteria of culpability, the English judges are struggling to
define the relevant features of the modern individual. How much ethical frailty do we
allow this individual? Does she owe her allegiance to positive law or common morals?
Must she take care to heed the signals she receives from the world of experience? To obey
18Regina v. Faulkner, 13 Cox's Cases Res. 550 (1877) (Fitzgerald, J.).
19Id. (Keogh, J.)
20Regina v. Prince, L.R. 2, Crown Cases. Res. 154 (1875) (Bramwell, B.).
21Id. (Brett, J.).
11
the legislature? Do her legal duties set the minimum or the maximum of her social duties?
It takes not a subversive re-reading, but a change in vocabulary, to view these cases as
“inventing” the subjects of their jurisprudence.
Now return to Blackstone for a moment to note that the dilemma between desert
and utility creates one other great mysterious problem for the substantive criminal law:
the problem of cause:
And yet, generally, a design to transgress is not so flagrant an enormity as
the actual completion of that design. For evil, the nearer we approach it, is
the more disagreeable and shocking; so that it requires more obstinacy in
wickedness to perpetrate an unlawful action, than barely to entertain the
thought of it: and it is an encouragement to repentance and remorse even
till the last stage of any crime, that it is never too late to retract; and that if
a man stops even here, it is better for him than if he proceeds....22
The key to that mystery, however, does not lie in the question of what it means to cause a
result. On that score, the familiar vagaries of actual and proximate cause plague the
criminal law as they do tort law. Rather, the mystery more peculiar to the matter of
criminal punishment is that of why cause matters at all. Hence we face the problem of
distinguishing attempts from both completed crimes and from actions or mental
phenomena that fall short of crime. And then we face the even subtler difficulties of
determining the reach of complicity and conspiracy law.
No one text easily comprehends the problem, but no student or scholar can fully
22Blackstone, supra note 1, at 12.
12
appreciate the criminal law without spending an hour with one of the great common law
cases, State v. Tally,23 which explores the mystery with literary elegance and
philosophical candor beyond anything we will find in modern jurisprudence. Here is the
raw plot of this late Victorian novel-in-an-appellate-opinion: Ross, the seducer of Tally's
sister in law, flees Scottsboro for Stevenson, with Tally's kinsmen in pursuit. Ross's
kinsman sends a telegram of warning to Ross at Stevenson. Tally sends a telegram to the
telegraph operator at Stevenson, urging him to prevent Ross from escaping. The
Stevenson telegraph operator ends up not delivering the warning to Ross, who is killed.
There is really one key problem in Tally: As exquisitely analyzed by the court, it is
impossible to determine for sure whether Tally's actions played any causal role in Ross's
death.
It is quite enough if the aid merely rendered it easier for the principal actor
to accomplish the end intended by him and the aider and abettor, though in
all human probability the end would have been attained without it. If the aid
in homicide can be shown to have put the deceased at a disadvantage, to
have deprived him of a single chance of life which but for it he would have
had, he who furnishes such aid is guilty, though it cannot be known or
shown that the dead man, in the absence thereof, would have availed himself
of that chance; as, where one counsels murder, he is guilty as an accessory
before the fact, though it appears probable that murder would have been
done without his counsel; and as, where one being present by concert to aid
if necessary is guilty as a principal in the second degree, though, had he been
absent murder would have been committed, so where he who facilitates
murder even by so much as destroying a single chance of life the assailed
23102 Ala. 25, 15 So. 722 (1894).
13
might otherwise have had, he thereby supplements the efforts of the
perpetrator, and he is guilty as [a] principal in the second degree at common
law, and is [a] principal in the first degree under our statute, notwithstanding
it may be found that in all human probability the chance would not have
been availed of, and death would have resulted anyway. . . .24
We do not know how or whether one person can cause another volitional actor to choose
to act. Equally important, we do not know for sure why we care, since a system based
solely on manifest culpability would indeed not care. Modern legal doctrine is then
riddled with generic rationalizations, such as that of Justice Frankfurter in explaining why
conspiracy to commit a crime can be a crime independent of the target crime:
[C]ollective criminal agreement--partnership in crime--presents a greater
potential threat to the public than individual delicts. Concerted action both
increases the likelihood that the criminal object will be successfully
attained and decreases the probability that the individuals involved will
depart from their path of criminality. Group association for criminal
purposes often, if not normally, makes possible the attainment of ends
more complex than those which one criminal could accomplish. Nor is the
danger of a conspiratorial group limited to the particular end toward which
it has embarked. Combination in crime makes more likely the
commission of crimes unrelated to the original purpose for which the
group was formed. In sum, the danger which a conspiracy generates is not
confined to the substantive offense which is the immediate aim of the
24Id. at 102 Ala. 69-70, 15 So. 738-39 (emphasis added).
14
enterprise.25
But one might prefer the less pretentious statement in Tally, which quietly assumes,
without bothering to argue, that the "why" question has been settled as best as human
wisdom allows, and then shows exquisite moral realism in finding a workable rule for
merely human judges and lawyers to follow.,
In sum, the plagues of liberal criminal jurisprudence have been the difficulties that
Blackstone himself delineated. The best of modern criminal scholarship implicitly
demonstrates the stubborn endurance of these difficulties but recasts them in light of our
new self-understanding of the economics of law: not through simplistically inapt
mathematical models, but through a self-critical social economics that sees social
meaning as part of the capital at play in legal and political markets. Thus, read, Louis
Michael Seidman's "Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem
of Crime Control."26 Seidman shows how utilitarianism ultimately turns on itself if it
serves as an instrument of the liberal state's criminal jurisprudence. Although, as
Bentham would say, harsh punishments may overdeter crime by creating too much social
cost, Seidman notes that the cost of inflicting punishment is greater than the cost of
threatening it. And so if there is no decline in the marginal productivity of punishment,
then at some point the threat of hideous punishment is costless, because it deters all
crime. So long as the cost of catching is higher than the cost of punishing, a risk-
preferring of system makes sense--and hence a system of extreme legal harshness.27
Put differently, notes Seidman, if particularized cost-benefit analysis is the legal
25United States v. Callanan, 364 U.S. 587 (1939).
2694 Yale L. J. 315 (1984).
27Id. at 323.
15
norm, the law will not deter much at all, since every individual will perform the same
cost-benefit analysis as the legislature. Thus, a defendant who is aware that special
circumstances are exculpatory may not weigh the cost of punishment in deciding whether
to commit a crime. If so, then the only way to ensure that a criminal has weighed the
value of the crime to him against social cost is to threaten to punish him regardless of any
of the particular circumstances of his condition or situation. Hence we may need an
acoustic separation of conduct rule and decision rules.
This is a version of the "sorting paradox"--the paradox that everyone who violates
the law thereby proves he was not deterrable at that level. As laid out succinctly in a
gem-like essay by H.L.A. Hart28, the paradox of general deterrence is that for every
person who commits a crime we can identify some characteristic or factor that made him
undeterrable.29 But as Seidman notes where the cost of identifying relevant
characteristics is high, and the risk of mis-sorting is great, the only practical solution is to
take the Holmesian path and acknowledge that we are necessarily sacrificing some of the
underserving along with the deserving to better serve the common good. Hence the very
effort to put in a no-fault utilitarian punishment system weakens the deterrent effect of
punishment; it is the “premium” of moral condemnation that makes efficiency-analysis
more effective, because without it efficiency-analysis would be self-defeating.
Read any modern liberal treatise on substantive criminal law, and find yet another
restatement of this agony of liberalism--the reconciliation of the deserved and the useful.
Inevitably, read of Packer’s “due process” and “crime control” models in The Limits of
the Criminal Sanction,30 but for a more elegantly concise version of this classic liberal
28H.L.A. Hart, Punishment and Responsibility 18-20 (1968).
29Id. at 329-30.
30Herbert Packer, The Limits of the Criminal Sanction 149-73 (1968).
16
agony, and for an almost Panglossian solution to it, read Henry Hart’s “The Aims of the
Criminal Law.”31 Hart recognizes that there can be no unifying principle of criminal
punishment, but he insists that it would in fact be bad if there were a single principle.
Glibly assuming that all competing values are important, he offers the pragmatic
institutionalism of the legal process school, arguing that the matter of priority of
principles is always a matter of solving a particular problem through a particular agency.
The criminal law, for Hart, simply tells people what to do or not do. It is agnostic in
defining crime, except to involve the notion of condemnation independent of severity of
sanction; it is mainly--or merely--a taxonomy of rules of recognition. Hart knows that his
era aspires toward rehabilitation as punishment’s goal, 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. . . .
Is the correlation between describable types of conduct (acts or
omissions), on the one hand, and the need for cure and rehabilitation of
those who engage in them, on the other hand, so close that the need can be
taken as a reliable index of the types of conduct to be forbidden and the
differentiation among offenses to be made? . . . . The danger to the
individual is that he will be punished or treated, for that he is or is believed
31Henry Hart, The Aims of the Criminal Law, 23 Law & Contemporary Problems 401 (1958).
17
to be, rather than for what he has done.....The danger to society is that the
effectiveness of the general commands of the criminal law as instruments
for influencing behavior so as to avoid the necessity for enforcement
proceedings will be weakened.32
If Packer wrote with grave solemnity and Henry Hart with sunny finessing
optimism, The 1959 Tentative Draft of the ALI Commentary to the Proposed Model
Penal Code33 sets the not-quite-happy mean of serious intellectual conflict resolved in
soberly clear-eyed, business-like legal doctrine. Written on the verge of the explosion of
political sentiment and intellectual ambition of 1960's political liberalism, the MPC, with
its concern for highly precise specifications of acts and mental states, and its disdain for
strict liability and upgrading forms of vicarious liability, is not only an effort to codify the
common law of crimes and to clean up the excrescences of common-law based criminal
statutes. It is also a kind of constitutional moment, in Bruce Ackerman's sense,34 a set of
model statutes establishing certain quasi-constitutional principles that guide and restrain
legislatures themselves.
As background, ponder Justice Harlan's famous dictum about the death penalty in
McGautha v. California that:
To identify before the fact those characteristics of criminal homicides and their
perpetrators which call for the death penalty, and to express these characteristics
in language which can be fairly understood and applied by the sentencing
32Id. at 407 & n.17.
33American Law Institute. Model Penal Code and Commentaries (Tentative Draft No. 9, 1959).
34Bruce Ackerman, Reconstructing American Law (1984).
18
authority, appear to be tasks which are beyond present human ability.35
Also examine what for the ALI's exemplary liberal jurisprudence in homicide law is its
virtual founding document--Michael's and Wechsler's famous "A Rationale of the Law of
Homicide."36 Michael and Wechsler exhibit a subtle blend of respect for, acquiescence
in, or condescension towards public preferences about crime, while also tinkering with
schemes of social engineering. They assume the possibility of drawing coherent moral
distinctions among killers, and draw from those distinctions a sentencing plan that
accommodates the competing goals of punishment--or more specifically the competing
ways of preventing crime. Finally, they unembarrassedly see rehabilitation as a possible
form of punishment. After laying out a fundamental taxonomy of aspects of killings and
killers, they acknowledge that "it is impossible in the present state of knowledge to
determine with any precision what weight should be given the various aggravating and
extenuating circumstances, either absolutely or relatively."37 And of the death penalty
specifically, they pose the question thus:
If the death penalty is commonly regarded with greater dread than even life
imprisonment, as we think it usually is; if criminal homicides are
disturbingly frequent; if the attempt to apply the death penalty will not lead
to nullification; and if it can be applied without exciting too much public
hysteria, without brutalizing the population and without destroying too many
lives, then there is a strong case for employing it in the most aggravated
cases for deterrent purposes, although from other points of view its use may
be objectionable. . . . To the extent that imprisonment is employed for terms
35402 U.S. 183, 204 (1971).
3637 Colum. L. Rev. 701 (Part I), 1281 (Part II) (1937).
37Id.
19
less than life, it is obviously desirable that severity be attained by protracting
the period of imprisonment rather than by cruel or exceptionally arduous
conditions of incarceration; to release men unfit for a non-criminal life,
embittered and determined to exact their revenge, may produce as much
crime as such harshness prevents. A prison program must be reformative in
purpose even if the requirements of deterrence demand that men be detained
after they could safely be released and that less be done to reform them than
could be done. 38
This confident, even self-congratulatory language reflects the reform spirit of the legal
process era, yet it also sounds so absurdly anachronistic in its moral delicacy and its
cautious confidence in social science that it could come from the era of Beccaria or
Bentham. Again, recur to Foucault, in this case his analogous survey of the utilitarian
reform movement:
The true objective of the reform movement . . . was not so much to
establish a new right to punish based on more equitable principles, as to set
up a new "economy" of the power to punish, to assure its better distribution,
so that it should be neither too concentrated at certain privileged points, nor
too divided between opposing authorities; so that it should be distributed in
homogenous circuits capable of operating everywhere, in a continuous way,
down to the finest grain of the social body.39
So the post-MPC history of American death penalty law, through the temporary judicial
38Id. at 1306-07
39Foucault, supra note 9, at 80-81
20
nullification of capital punishment40 and then its reinstatement41 test our efforts at
working out this "economy of justice." Where did this experiment in the economizing of
justice end? Compare the MPC plans and hopes with the reflections of Justice Powell for
the Court in McCleskey vs. Kemp,42 an opinion of almost perversely candid intellectual
honesty. Rejecting the claim that de facto discrimination in death sentencing based on the
race of the victim was unconstitutional, Powell said:
McCleskey's claim, taken to its logical conclusion, throws into serious
question the principles that underlie our entire criminal justice system. The
principles that underlie our entire criminal justice system. The Eighth
Amendment is not limited in application to capital punishment, but applies
to all penalties. Thus, if we accepted McCleskey's claim that racial bias has
impermissibly tainted the capital sentencing decision, we could soon be
faced with similar claims as to other types of penalty. . . . . Similarly, since
McCleskey's claim relates to the race of his victim, other claims could
apply with equally logical force to statistical disparities that correlate with
the race . . . of other actors in the criminal justice system, such as defense
attorneys, or judges.43
Justice Powell implicitly warns us that we cannot accept the logical conclusions of our
own principles, for to coherently cure capital punishment of the taint of racist attitudes
would be to undo the whole criminal justice system.
40Furman v. Georgia, 408 U.S. 238 (1972).
41Gregg v. Georgia, 428 U.S. 153 (1976).
42481 U.S. 279 (1985).
43Id. at 314-17.
21
And so for moral and political clarification, read the candid response to
McCleskey of Randall Kennedy, whose searing article on the case admonishes that us to
see how desert and utility bear a hopelessly vexing relation.44 Kennedy shows that the
victim-race discrimination issue presents an impossible conflict for blacks: To give black
victims "equal protection" from heinous murder with whites, the state must execute the
killers of blacks as often as it executes the killers of whites--and thereby must execute
more blacks. Kennedy then tests the limits of social engineering aimed at reconciling
desert and utility by hypothesizing any solution to victim-race discrimination as a form of
affirmative action. He notes that in employment discrimination cases, the courts have
permitted the advantaging of minorities in hiring but have drawn the line at layoffs, on
the premise that in the latter case the "social tax" of affirmative action is too high and too
focused on disadvantaging particular whites. Kennedy then wryly recasts the capital
punishment issue in parallel terms.45 He recognizes that "levelling downwards"--
essentially abolition of capital punishment--would usefully signal the principle that the
death penalty cannot be administered at all unless administered equally. But he also
unsentimentally recognizes the death penalty as a "highly valued public good," so that
abolition would be viewed as an across-the-board "reduction in services."46 He offers no
simple remedy, but rather a challenge to the Court to find some solution better than the
worst one, the one they chose: i.e., to act as if no constitutional problem even exists.
Now consider what social science and social theory tell us about these efforts to
design a fair and efficient criminal jurisprudence. Indeed, consider the even larger
criminological questions of the sort traditionally asked by Marxists. Marx and Engels
44Randall Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L.
Rev. 1388 (1988).
45Id. at 1437-39.
46Id. at 1439-40.
22
themselves had little to say about penal policy, and many of their progeny have shown
more than the average tendency toward reductionism. Marxists generally regard
criminology itself as a "problematic" discipline; they cannot in good faith collude in
searching for the cures of crime according to the tenets of modern positivism. But there
are several basic premises of Marxist criminology which, though all arguable and
susceptible to reductionism, enable students of criminal law to at least open, if not
answer, the more global questions that American liberalism and positivism rarely ask. To
the Marxist punishments are historically specific phenomena which appear in concrete
social forms; punishment forms are reflections of the means of production, reflect class
interests, are intricately related to other social institutions, but also take on some "relative
autonomy" as cultural forces; the operations of these forces both reflect and are disguised
and distorted by ideology.47
But simply read Franklin Zimring's and Gordon Hawkins's magisterial The Scale
of Imprisonment48 to realize that one need not take on orthodox Marxism to think
dialectically about criminal justice. The elegantly simple and profound premise of their
book is that a society's rate of imprisonment may depend on factors having little to do
with its rate of crime. Indeed, they show, empirical studies cannot convincingly correlate
rates of imprisonment to either the rate of crime (in part because crime is still so rarely
punished by imprisonment, in part because so much crime is committed by juveniles); to
public opinion or political pressure (which make largely symbolic demands, and whose
calls for punishment get dissipated in the complex bureaucracies of financial and
prosecutorial power); to the percentage of young males in the population (which varies
47David Garland, supra note 129, at 90-92 (discussing G. Rusche & O. Kirchheimer, Punishment and
Social Structure (1939).
48 Frank Zimring and Gordon Hawkins, The Scale of Imprisonment (1991).
23
far less than rates of imprisonment); to economic conditions (the deadest horse in
criminology if viewed in terms of general indicators like national unemployment); or to
the rate of drug use (which cannot really be measured, but in any event largely affects
short-terms stays in local jails).49
If the criminal law is an engine designed to send the appropriate people to prison,
there is a bewildering variety of forces that control its throttle. Questions of prosecutorial
and judicial discretion and financial resources may, of course, help determine the size of
our incarceration product, but Zimring's and Hawkins's survey of historical theories and
current empirical research leaves one amazed at how little we know of the breadth and
complexity of these forces. In the 1930's, the Marxists Rusche and Kirchheimer50
postulated that the rate of imprisonment depends on a society's stage of industrial
development and surplus or deficit of labor. Though their studies now seem theoretically
quaint and empirically questionable, they were clearly right that penal systems are not
isolated phenomena subject to their own special laws but are embedded in wider social
forces. Modern empiricists51 have challenged the old Marxists with a Durkheimian
theory that the rate of imprisonment in a society is in fact relatively constant, since
societies essentially find the level of imprisonment they need to ensure social solidarity.
That theory, too, has been subject to vigorous empirical challenge, but its implicit
theoretical premise is as remarkable as that of Rusche and Kirchheimer. Yet again, to
study crime is to study our own paradoxes. Zimring's and Hawkins's work illustrates how
49 Id. at 167-75. One difficulty is that the measures are so imprecise that even, for example, the most
sophisticated efforts at cost-benefit analysis produce hilarious results like mathematical conclusions than an
extra expenditure of $6 billion per year will eliminate crime in America. Id. at 92-94, citing E. Zedlewski ,
Making Confinement Decisions, in National Institute of Justice, Research in Brief (1987).
50G. Rusche & O. Kirchheimer, Punishment and Social Structure (1939).
51E.g., Alfred Blumstein & Jacqueline Cohen, A Theory of the Stability of Punishment, J. Crim. L. &
Criminology (1973); see F. Zimring & G. Hawkins, supra note 132, at 14-29.
24
the criminal justice system is the textbook example of externalities, where virtually the
only agents in government or society who have no effect on the imprisonment rate are
the people who pay for or the people who run the prisons.
Now turn more in the direction of the modern Humanities for another perspective
on how we attempt control--and therefore how we attempt to define--"crime."
Postmodern observers of this agony of liberalism will suggest that we "construct" the
crime we seek to punish. Cliches of social constructionism aside, moral philosophy and
related art help us understand how we shape the objects of our fears. Who is the criminal
we fear? As noted earlier, even in the quaint legal technology of turn-of-century English
mens rea cases, liberalism has made a "homo juridicus"--an amalgam of partial or
assumed free-will and partial or assumed determined behavioral responses--that can be
captured by our culpability codes. But we suffer a disconnection between the social
phenomena of crime and their representation in philosophies of punishment. Kant's ideal
of rational individualism clashes with shadowy world full of incentives to criminality, yet
the Kantian model survived in legal codes whose formal boundaries of character, act, and
will are regularly violated by the motley crew of killers and thieves who plague our
system.
Our Willie Horton's, black or white, homicidal or merely thieving, are characters
who manifest a pathological indifference to the fears and desires of normal people. What
they are pathologically indifferent to may vary, at least if we worry about formal doctrinal
categories. Sometimes they are pathologically indifferent to facts, such as the likely
physical consequences of their pleasure-seeking actions; sometimes these facts are the
"facts" of another person's volition, as in some rape cases; sometimes they are
pathologically indifferent to legal rules, such as those determining the boundaries of
property; and sometimes their indifference is harder to capture in doctrine, because it is
25
neither about facts nor law per se, but about whether social norms, legal or otherwise, or
the needs of other human beings, are worth attending to at all. In the abstract, the Model
Penal Code stresses the key mens rea of recklessness, an intriguing formulation of a state
of mind of pathological indifference to norms that in older state laws carries with it the
more colorfully connotative vocabularies of "extreme indifference" and "malice."
Nothing in the history or construction of the Code has recognized the teasing but
unexamined fit between this key doctrinal component of its mental state structure and the
social psychology of pathology. Yet when courts have had to confront some of the more
socially and politically charged issues of mental culpability in new criminal contexts, it
has been precisely the amorphousness of the concept of reckless indifference, as lying
between purpose and negligence, that has tested their ability to create sound doctrine.
For two powerfully imaginative renderings of this problem, read the work of Peter
Arenella and Jack Katz. To rethink the problem of pathology, we must recognize our
ambivalence over holding a person responsible for his apparent inability--or is it his
unwillingness?--to exhibit appropriate moral empathy. Can one be held responsible for
his moral values, unless we locate the point at which he formed those moral values or had
the chance to reform them? This is exactly what the criminal law (somewhat
unconsciously) does; we rely on what Arenella calls a theory of "fair attribution," which
is essentially a rhetorical rationalization for avoiding the very question he poses.52 What
Arenella calls our "thin" theory of rationality permits liberalism to adopt a "soft"
determinist view of behavior that protects the issue of moral agency from scrutiny.
Shift from Arenella and reflective moral philosophy to Jack Katz and dramatical
52Peter Arenella, Character, Choice and Moral Agency: The Relevance of Character to our Moral
Culpability Judgments, 7 Social Philosophy & Policy 59 (1990).
26
demonstration in an empirical, and yet a literary, form. In his great work Seductions of
Crime, the "text" for Katz is the inner and outer behavior of the criminal, as recorded in
Katz's interviews and observations, and as captured, and misrecognized and
reconstructed, by legal categories.53 Katz reviews a wide variety of criminal artists-in-
the-self-making: the "righteous slaughterer" who kills out of moral justification even
where no law recognizes the defense; the petty shoplifter who acts out a sensual fantasy
of "sneaky thrills; the "senseless killer"; the "badass" young man who is "tough, not easily
influenced, highly impressionable, or anxious about the opinions that others hold of him .
. . not morally malleable." Katz's criminals are perverse moral artists, and perverse
utilitarians. They perpetually compose alien aspects of their selves and script conduct
hostile to civilization. It would be superficial to view their violence as gratuitous.
Rather, it backs up their meaning without any utilitarian analysis, since their public selves
are not to be adjusted to contingent social expectations. They alone understand--and
overtly manipulate--the difference between rationality and irrationality, and let the world
know that they are not beholden to make this meaning intelligible to others by clarifying
the distinction.
In Katz's chapter "Doing Stick-Up", the most "professional" robbers create
elaborate symbols that attest to rational utilitarian justifications for their professionalism,
yet the overall shape of their lives is self-destructively irrational. Katz's robbers fulfill
some existential need by creating situations that limit their utilitarian control, and within
those artificial boundaries they appear to meet high standards of rationality. In short, they
script dramas full of exogenous limits on their action in order to demonstrate or test their
ability to sustain personal integrity in the face of an (artificially) recalcitrant universe.54
53Jack Katz, Seductions of Crime (1989).
54Id. at 164-93.
27
Robbery for them is therefore often really aesthetic recreational violence; indeed this
process entails dissipation of the proceeds of the crime. And in this aesthetic sense, the
causes of crime are composed by the offenders themselves--as lures and pressures they
experience as exogenous. Chaos is produced so it can be transcendentally controlled.
Being "bad" is fundamentally not a matter of acting criminally or immorally, or even
acting with physical aggression, but something that is more precisely defined with a
morally charged, spatial metaphor: charting out a big space in public interactions and
claiming to be able to fill it.
What of Katz's killers? They often act with the fatalistic sense that their actions
are demanded and foretold and destined, and the fact that they do ultimately kill only
proves that the killings are ordered by law. Thus, if one sees the infamous subway
vigilante Bernhard Goetz55 as wounding senselessly because he shot the last boy as the
latter lay utterly helpless and harmless, then Goetz's defense is that this was only an
"apparently senseless" shooting--not that it was practically necessary to save his own life,
but that it was in defense of a higher moral order he wanted to restore to the subways.
Many spousal killings, Katz shows, occur over disputes concerning the proper handling
of domestic business, such as a dispute over the proper priority (by legal or moral
standards) among a couple's financial obligations--that is, over the principle of how one
affirms to the world that one is a debtor of integrity. Many killings occur over slight
insults, such as disputes over parking places or proper respect or civility in a bar or over a
pool table,56 but it is important, Katz argues, to see that such trivial matters are viewed
55See People v. Goetz, 68 N.Y.2d 96, 497 N.E.2d 41 (1986).
56Significantly, the modal time for these killings is during the casual hours of Saturday night or Sunday
morning, when the expected release from the workaday humiliations of job and schedule produce a sense of
entitlement to peace and respect, an entitlement so viscerally assumed that its violation produces violent
rage. Id. at 21-22, 46.
28
psychologically not only as assertions of legitimate property rights, but as affirmations of
the general principle of property ownership and civil order. Ironically, though this form
of killing is greater among the poorer classes, it might be seen as a defense of bourgeois
values--marital order, property rights, responsible debt.57
Finally, turn from the substantive law of crime to criminal procedure. This is a
legal world of social "interest-balancing"--with the "desert" side of the desert-utility pair
focused on deontological rights deemed of constitutional stature. Start, for inspiration,
with one of the great old cases, cited now as ancient historical background but almost
never read anymore, to realize that constitutional law brought moral grandeur to criminal
justice when the system was honestly brutal, not hypocritically liberal. Recur to the era
when the Supreme Court had to declare that police could not beat and whip a poor
defendant into confessing a crime when there was little or no other evidence that he had
committed it. Thus, from Brown v. Mississippi:58
The State may abolish trial by jury. It may dispense with indictment by a
grand jury and substitute complaint or information.. . . But the freedom of
the State in establishing its policy is the freedom of constitutional
government and is limited by the requirement of due process of law.
Because a state may dispense with a jury trial, it does not follow that it
may substitute trial by ordeal. The rack and the torture chamber may not
be substituted for the witness stand. The State may not permit an accused
to be hurried to conviction under mob domination--where the whole
57Id. at 17-18, 45.
58297 U.S. 278 (1936)
29
proceeding is nothing but a mask--without supplying corrective process . .
. .
Decades later criminal procedure became a duller matter of the fine-tuning of utilitarian
rules of restraints on police, backgrounded by a vague sense of deontological rights
encoded in the Bill of Rights. We speak of the so-called Warren Court revolution and the
so-called Burger-Rehnquist court counter-revolution. Certainly, the student must read
Mapp v. Ohio59, Miranda v. Arizona60, Gideon v. Wainwright.61 But do not read this
brief historical episode too melodramatically: Perhaps the most important Warren Court
decision is the murky, politically and intellectually ambivalent one in Terry v. Ohio.
There, Chief Justice Warren himself sided with the police in declaring the "stop-and-frisk
permissible under the Fourth Amendment, even in the absence on true probable cause to
believe a crime had occurred. Remarkably, Warren worried over the futility of utility,
over whether a system built around enforcing rights through rules of exclusion could
carry out its own norms.
Street encounters between citizens and police officers are incredibly rich in
diversity. They range from wholly friendly exchanges of pleasantries or
mutually useful information to hostile confrontations of armed men
involving arrests, or injuries, or loss if life. . . . Some of them begin in a
friendly enough manner, only to take a different turn upon the injection of
some unexpected element into the conversation. Encounters are initiated by
the police for a wide variety of purposes, some of which are wholly
unrelated to a desire to prosecute crime . . Doubtless some police "field
59367 U.S. 643 (1961).
60384 U.S. 436 (1966).
61372 U,S. 335 (1963).
30
interrogation" conduct violates the Fourth Amendment. But a stern refusal
by this Court to condone such activity does not necessarily render it
responsive to the exclusionary rule . . Proper adjudication of cases in which
the exclusionary rule is invoked demands a constant awareness of these
limitations. The wholesale harassment by certain elements of the police
community, of which minority groups . . . complain, will not be stopped by
the exclusion of any evidence from any criminal trial. Yet a rigid and
unthinking application of the exclusionary rule, in futile protest against
police practices which it can never be used to control, may exact a high toll
in human injury and frustration of efforts to prevent crime. No judicial
opinion can comprehend the protean variety of the street encounter.62
The drama of criminal procedure is now subtler, but it remains the perennial
cultural macro-drama captured by Thurman Arnold in his aptly titled book, The Symbols
of Government. His dramaturgic image of law finds more than a resolution of guilt or
innocence of the conventional sort. The criminal trial is as much a social ritual as a legal
instrument, valuable in part because it can affirm our many values at once.
For most persons, the criminal trial overshadows all other ceremonies as a
dramatization of our spiritual government, representing the dignity of the
State as an enforcer of law, and at the same time the dignity of the
individual when he is an avowed opponent of the State, a dissenter, a
radical, or even a criminal. So important is the criminal trial to the whole
ideological structure of government that its disappearance in favor of an
efficient and speedy way of accomplishing the incarceration of persons
62392 U.S. 1, 13-14.
31
supposed to be dangerous to the social order, is always a sign of
psychological instability of a people.63
If viewed functionally, Arnold argues, the criminal trial is inherently a failure. The rules
of evidence are a woefully inefficient tool of investigation; the definitions of criminal
responsibility rarely accord with sensible psychology; the criminal sentence often fails to
serve any social purpose, and so on. But all this may be irrelevant since
the only function which the criminal trial can perform is to express
currently held ideals about crime and about trials. It can act as a brake
against a popular hysteria, which insists upon following any one of the
ideals to its logical conclusion. . . Obviously, therefore, the public
administration of criminal justice is not a method of controlling crime. It
is rather one of the problems which must be faced by those who desire to
control crime. Without the drama of the criminal trial, it is difficult to
imagine on just what institution we would hang our conflicting ideals
about public morality.64
A word about Miranda law itself. Despite right-wing symbolic protestations, it
has been pretty fully absorbed into police "culture." The empirical studies suggest it may
not have unduly restricted law enforcement.65 Despite occasional conservative attacks
and the lingering concern about "judge-made" rules, it faces little threat of overruling, and
63 Thurman Arnold, The Symbols of Government 130 (1935)
64Id. at 147-48.
65See Yale Kamisar, Wayne LaFave, & Jerrold Israel, Modern Criminal Procedure 542-43 (1990)
(summarizing sources); but see Paul Cassell, Miranda’s Social Costs: An Empiriucal Reassment, 90 Nw.
U.L. Rev. 387 (1996).
32
the case law has largely involved tinkering and even some mild expansion. The fruitful
line of inquiry, both descriptive and normative, is to examine how Miranda addresses the
problem of human autonomy in relation the state. That, after all, is what is supposed to
make criminal law more important than any other kind of law if we remain, as we seem to
be remaining, within a liberal culture.
How can one rationally choose a self-harming act?66 Criminal law generally
assumes free volition, but "intersubjectivity" renders compulsion meaningless because no
will is truly free of other wills. Little of the criminal procedure scholarship has
appreciated the odd practical result of the inherent paradoxes of self-incrimination, and
certainly no academic writing has captured it as well as the journalistic account in David
Simon's book, Homicide, a Damon-Runyonesque slice of the life of Baltimore detectives
and their prey.67 A detective gives a murder suspect the warnings, and then:
The detective assures you that he has informed you of these rights because
he wants you to be protected, because there is nothing that concerns him
more than giving you every possible assistance in life. If you don't want to
talk, he tells you, that's fine. And if you want a lawyer, that's fine too,
because first of all, he's no relation to the guy you cut up, and second, he's
gonna get six hours overtime no matter what you do. But he wants you to
know--and he's been doing this a lot longer than you, so take his word for it-
-that your rights to remain silent and obtain qualified counsel aren't all
they're cracked up to be.
. . . Once you up and call for that lawyer son, we can't do a damn thing for
66George Thomas & Thomas Bilder, Aristotle's Paradox and the Self-Incrimination Puzzle, 82 J. Crim. L.
& Criminology 243 (1991).
67David Simon, Homicide: A Year on the Killing Streets (1991).
33
you. No sir, your friends in the city homicide unit are going to have to leave
you locked in this room all alone and the next authority figure to scan your
case will be a tie-wearing, three-piece bloodsucker--a non-nonsense
prosecutor from the Violent Crime unit with the official title of assistant
state's attorney for the city of Baltimore. And God help you then, son. . . .
What the hell is wrong with you, son? . . . I got three witnesses in three
other rooms who say you're my man. I got a knife from the scene that's
going down to the lab for prints. I got blood spatter on the Air Jordans we
took off you ten minutes ago. . . .
. . Look, bunk I'm giving you a chance, He came at you, right? You
were scared. It was self-defense.
Your mouth opens to speak.
He came at you, didn't he?
"Yeah," you venture cautiously, "he came at me."
Whoa, says the detective, holding up his hands. Wait a minute, If we're
gonna do this, I gotta find your rights form. Where's the fuckin form?
Damn things like cops, never around when you need 'em.68
If Simon's cops suggest that the state cannot afford to give defendants the rights it
purports to guarantee them, he confirms the express statement of this view in John
Langbein's pitiless rendering of our on rights-based criminal procedure reforms. Why,
asks Langbein, has the rights revolution become largely a background or shadow world of
legal rules behind the daily grind of plea-bargaining? With wry nostalgia for the old
medieval systems of proof, Langbein argues that most modern reforms are futile efforts to
mitigate the consequences of having handed the adjudication of guilt to juries and then
68Id. at 194-96 .
34
having come to worry over how to constrain what the jury hears and does.
The Anglo-American trial system has been caught up over the last
two centuries in an effort to protect the accused against the dangers of the
jury system, in which laymen ignorant of the law return to a one- or two-
word verdict that they did not explain or justify. Each system found itself
unable to recant directly on the unrealistic level of safeguard to which it had
committed itself, and each then concentrated on inducing the accused to
tender a confession that would waive his rights to the safeguards.
The European law of torture preserved the medieval law of proof
undisturbed for those cases in which there were two eyewitnesses or
voluntary confession. But in the more difficult cases (where, I might add,
safeguard was more important), the law of torture worked an absolutely
fundamental change within the system of proof; it largely eliminated the
adjudicative function. Once probable cause had been determined, the
accused was made to concede his guilt rather than his accusers to prove it.
In twentieth-century America we have duplicated the central
experience of medieval European criminal procedure; we have moved from
an adjudicatory to a concessionary system. We coerce the accused against
whom we find probable cause to confess his guilt. To be sure, our means
are much politer; we use no rack, no thumbscrew, no Spanish boots to mash
legs. But like the Europeans of distant centuries who did employ these
machines, we make it terribly costly for an accused to claim his right to the
constitutional safeguard of trial. . . . The sentencing differential is what
makes plea bargaining coercive. Like the Medieval Europeans, the
35
Americans are now operating a procedural system that engages in
condemnation without adjudication.69
An ironic complement to Langbein comes in one final canonical work, perhaps
the most lauded modern essay on the history of criminal law: Douglas's Hay's "Property,
Authority and the Criminal Law."70 How is it that, Hay asks, that in Renaissance
England capital statutes multiplied, yet few were executed and many were pardoned?
Hay's piece is about criminal law demonstrating the state in a condition of conspiracy and
dramaturgy. Its goal, he says, was not to maximize punishment, but to epitomize it. Thus
the Crown and Parliament were concerned not just with financial cost-effectiveness but
with moral cost-effectiveness, fearing that too brutal a law would lose its moral force. So
the government, or the rich people whose property the brutal criminal law was designed
to protect, would episodically and mysteriously pardon or acquit the guilty, to create
miracle, mystery, and authority. "The criminal law was critically important in
maintaining bonds of obedience and deterrence, in legitimizing the status quo, in
constantly recreating the structure of authority which arose from property and in turn
protected its interests."71 And, argues Hay, the advent of strict procedural rules was the
key step in reform and legitimation. Code-pleading type technicalities were invoked
selectively to defeat prosecutions, and rich forgers were chosen selectively to be hanged.
Here was the peculiar genius if the law. It allowed the rulers of England to
make the courts a selective instrument of class justice, yet simultaneously
69John Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12-13 (1978).
70In Douglas Hay, Peter Linebaugh, John G. Rule, E.P. Thompsn & Cal Winslow, eds., Albion's Fatal Tree
(1975). The irony is that Langbein has written a vitriolic critique of Hay, claiming that Hay's notion of
legitimation is completely c ircular. See Langbein Albion's Fatal Flaw, 98 Past and Present 96 (1983).
71Id. at 25.
36
to proclaim the law's incorruptible impartiality, and absolute
determinacy... Its majesty, justice and mercy helped to create the spirit of
consent and submission, the "mindforged manacles," which Blake saw
binding the English poor.72
Langbein sees the liberal jurisprudence of rights lapsing helplessly into irrelevance
because of their impossible costs in thwarting necessary punishment. Hay sees this
jurisprudence as a brilliant conspiracy to both disguise and render more efficient the raw
dictatorial utility that underlay punishment. All they agree on is the most important
theme in the canon of criminal law--that a jurisprudence aimed at enhancing both desert
and utility can make certain adjustments but can hardly achieve resolution.
72Id. at 48-49.
