Criminal Law at the Margins
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Criminal Law at the Margins Douglas Husak1
© Springer Nature B.V. 2019
Abstract I describe how our understanding of some of the central principles long held dear by most (but certainly not all) criminal theorists may have to be interpreted (or reinterpreted) in light of the need to devise lenient responses (that may or may not amount to punishments) for low-level offenders. Several of the most plausible suggestions for how to deal with minor infractions force us to take seriously some ideas that many legal philosophers have tended to resist elsewhere. I briefly touch upon four topics: (1) whether informal (that is, non-state responses) can substitute for or count against the appropriate state sanction; (2) the significance of repeat offending for sentencing; (3) whether punishment for culpable public wrongdoing has intrinsic value; and (4) the scope of police powers in a liberal democratic state. The context for this discussion is R. A. Duff’s insightful examination of whether and under what conditions we should criminalize a public wrong or respond to it in some other manner. Keywords Duff · Non-serious offenses · Intrinsic value of retributive punishment · Proportionality · Repeat offenders · Police powers · Already punished enough Much of the public have now joined the bulk of contemporary penal theorists in welcoming proposals to decrease the severity of punishments throughout the United States. Book after book describes the phenomenon of mass incarceration and what should be done to alleviate it.1 Even politicians have begun to change course. Congress recently passed the First Step Act, the first enactment in quite a while to reduce the length of a number of sentences. This aspiration extends beyond low-lying fruit 1 Among the most recent of many impressive books is Rachel Elise Barkow: Prisoners of Politics: Breaking the Cycle of Mass Incarceration (Cambridge: Harvard University Press, 2019).
Thanks to members of the conference on R. A. Duff’s The Realm of Criminal Law at Rutgers University on May 10–11, 2019. * Douglas Husak [email protected] 1
Rutgers University, New Brunswick, USA
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Criminal Law and Philosophy
such as marijuana offenses, which should never have been criminalized in the first place.2 Real progress cannot be achieved in reducing the size and scale of the criminal justice system unless this movement extends to a great many crimes of violence, including relatively serious crimes such as robbery and burglary.3 In what follows, I will simply assume this sentiment is sensible and worthy of implementation.4 Thus I make no effort to defend it.5 Instead, my topic depends on what I take to be the ripple effects of less punitive reforms throughout the entire spectrum of offenses—especially those that no one regards as very serious. If the state begins to punish violent crimes less severely, one would suppose that nonviolent crimes would be punished less severely as well. Unless these ripple effects are acknowledged and taken into account, the state might
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