Can Criminal Law be Controlled?

Authors

Darryl K. Brown, University of Virginia Law SchoolFollow

Abstract

It is a bizarre state of affairs that criminal law has no coherent description or explanation. We have standard tropes to define criminal law, but they obscure as much as they clarify and are honored in the breach as much as the rule. Crimes, for instance, are defined by wrongdoing and culpability; to be guilty, one must do a wrongful act in a blameworthy manner, that is, as a responsible agent without excuse or justification. And crimes define public wrongs, which are distinct from private wrongs. Further, we criminalize only harmful conduct, or risk-creating conduct, or immoral conduct, or conduct the criminalization of which carries an expressive message of public values. And criminal law's function is to prevent crime, or to achieve justice through retribution, or both. But none of this gets us very far, either as a matter of conceptual clarity or descriptive accuracy regarding our actual collection of criminal laws. Lots of immoral and harmful conduct is not criminal; lots of harmless and morally neutral conduct is criminalized! Theconcept of "harm" itself so eludes definition that it has been employed to describe all manner of conduct with no tangible or emotional injury, no victim, and no significant risk creation. Similarly with "wrongdoing." Core cases are plain, but the line between public and private wrongs---crimes versus civil wrongs-has no widely shared definition, and no foundation beyond shared intuition. And if one accepts an expressive function for criminal law regardless of the harmfulness of the relevant conduct, the category of "crimes" grows even larger. The standard assumption is that, to be culpable for a crime, one must have a mental state that demonstrates knowledge, awareness, or voluntary will regarding one's conduct and its possible consequences. But crimes with no mental-state requirement abound.

Recommended Citation

Darryl K. Brown, Can Criminal Law be Controlled?, 108 Mich. L. Rev. 971 (2010).
Available at: https://repository.law.umich.edu/mlr/vol108/iss6/9