IN THE NAME OF JUSTICE

CATO INSTITUTE

Contents

Introduction Timothy Lynch.................................................................................................................................................vii1. The Aims of the Criminal Law Henry M. Hart, Jr..........................................................................................................................12. You're (Probably) a Federal Criminal Alex Kozinski and Misha Tseytlin...................................................................................................433. How Correct Was Henry M. Hart? James Q. Wilson..........................................................................................................................574. Federal Criminal Law: Punishing Benign Intentions-A Betrayal of Professor Hart's Admonition to Prosecute Only the Blameworthy Harvey A. Silverglate.....................655. Henry Hart's "The Aims of the Criminal Law": A Reconsideration Richard A. Posner........................................................................................956. How Would Henry Hart Have Approached the Problem of Suicide Terrorism? Alan M. Dershowitz...............................................................................1037. The Community's Role in Defining the Aims of the Criminal Law James B. Jacobs...........................................................................................1198. If the Criminal Law Don't Fit, Civilly Commit Richard B. Sanders, Jacob Zahniser, and Derek Bishop......................................................................1319. Substantive Limitations on the Criminal Law: Random Thoughts of a Judicial Conservative Stephen Markman.................................................................151AppendicesA. The Federal Prosecutor Robert H. Jackson................................................................................................................................173B. Crime Milton and Rose Friedman..........................................................................................................................................179C. An Address to the American Bar Association Anthony M. Kennedy...........................................................................................................189Notes.......................................................................................................................................................................195Recommended Bibliography....................................................................................................................................................235Contributors................................................................................................................................................................239Index.......................................................................................................................................................................241

Chapter One

I. Introduction

In trying to formulate the aims of the criminal law, it is important to be aware both of the reasons for making the effort and of the nature of the problem it poses.

The statement has been made, as if in complaint, that "there is hardly a penal code that can be said to have a single basic principle running through it." But it needs to be clearly seen that this is simply a fact, and not a misfortune. A penal code that reflected only a single basic principle would be a very bad one. Social purposes can never be single or simple, or held unqualifiedly to the exclusion of all other social purposes; and an effort to make them so can result only in the sacrifice of other values which also are important. Thus, to take only one example, the purpose of preventing any particular kind of crime, or crimes generally, is qualified always by the purposes of avoiding the conviction of the innocent and of enhancing that sense of security throughout the society which is one of the prime functions of the manifold safeguards of American criminal procedure. And the same thing would be true even if the dominant purpose of the criminal law were thought to be the rehabilitation of offenders rather than the prevention of offenses.

Examination of the purposes commonly suggested for the criminal law will show that each of them is complex and that none may be thought of as wholly excluding the others. Suppose, for example, that the deterrence of offenses is taken to be the chief end. It will still be necessary to recognize that the rehabilitation of offenders, the disablement of offenders, the sharpening of the community's sense of right and wrong, and the satisfaction of the community's sense of just retribution may all serve this end by contributing to an ultimate reduction in the number of crimes. Even socialized vengeance may be accorded a marginal role, if it is understood as the provision of an orderly alternative to mob violence.

The problem, accordingly, is one of the priority and relationship of purposes as well as of their legitimacy-of multivalued rather than of single-valued thinking.

There is still another range of complications which are ignored if an effort is made to formulate any single "theory" or set of "principles" of criminal law. The purpose of having principles and theories is to help in organizing thought. In the law, the ultimate purpose of thought is to help in deciding upon a course of action. In the criminal law, as in all law, questions about the action to be taken do not present themselves for decision in an institutional vacuum. They arise rather in the context of some established and specific procedure of decision: in a constitutional convention; in a legislature; in a prosecuting attorney's office; in a court charged with the determination of guilt or innocence; in a sentencing court; before a parole board; and so on. This means that each agency of decision must take account always of its own place in the institutional system and of what is necessary to maintain the integrity and workability of the system as a whole. A complex of institutional ends must be served, in other words, as well as a complex of substantive social ends.

The principal levels of decision in the criminal law are numerous. The institutional considerations involved at the various levels differ so markedly that it seems worthwhile to discuss the question of aims separately, from the point of view of each of the major agencies of decision.

II. The Perspective of Constitution Makers

We can get our broadest view of the aims of the criminal law if we look at them from the point of view of the makers of a constitution-of those who are seeking to establish sound foundations for a tolerable and durable social order. From this point of view, these aims can be most readily seen, as they need to be seen, in their relation to the aims of the good society generally.

In this setting, the basic question emerges: Why should the good society make use of the method of the criminal law at all?

A. What the Method of the Criminal Law Is

The question posed raises preliminarily an even more fundamental inquiry: What do we mean by "crime" and "criminal"? Or, put more accurately, what should we understand to be "the method of the criminal law," the use of which...