A distributive theory of criminal law.

• Author: Gruber, Aya

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment--retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare.

This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms. Understanding much of modern criminal law as distribution highlights an interesting political contradiction. For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or "rights") in order to ensure the welfare of another. But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims. Exposing criminal law as distributionist undermines these individuals' claimed pre-political commitment against government distribution.

[A]s a simple matter of distributive justice, a decent and compassionate society should recognize the plight of its victims and design its criminal system to alleviate their pain, not increase it.

Anthony Kennedy (1)

TABLE OF CONTENTS

INTRODUCTION I. DISTRIBUTION IN TORT AND CRIMINAL LAW A. Fault, Utility, and Distribution in Tort Law B. Retribution, Utility, and Distribution in Criminal Law II. DISTRIBUTION EXPLAINS CLASSIC CRIMINAL LAW QUANDARIES A. Felony Murder B. The Attempt-Crime Divide III. DISTRIBUTIONIST SENTIMENTS UNDERLIE MODERN PENOLOGY A. Distribution in the Victims' Rights Movement B. Distribution in Criminal Law Reform 1. Sentencing Reform 2. Victim Impact Evidence Law IV. POWER, POLITICS, AND DISTRIBUTION'S FATE CONCLUSION INTRODUCTION

For centuries, penal theorists have debated the ethical origins of criminal liability and punishment. From the collective theorizing of thousands of the brightest minds, tomes of legal literature, and hundreds of years of debate, two predominant justifications of criminal punishment have emerged: retributivism and utilitarianism. (2) Although there are multiple twists on these themes, the basic concept is that criminal liability is justified either because the offender deserves punishment (3) or because punishment makes society safer, whether through deterrence, rehabilitation, or incapacitation. (4) The goal of this Article is to demonstrate that, contrary to most conventional thought, the philosophy underlying many areas of modern American criminal law has less to do with fault or utility than with distribution. Distribution involves fashioning legal rules to achieve a desirable equilibrium between specific individuals or between individuals and society. (5) In private disputes, when two persons' interests conflict over a scarce good, a distributive principle dictates that the resource be allocated in a just way, which may or may not involve rights claims or maximizing utility. (6)

The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable (as he may not have intended harm) and not because such punishment increases net security in the world (as it empirically may not), but because punishment appropriately distributes pleasure and pain between the offender and victim. (7) In the tort context, scholarly literature and case law engage in compelling analyses of rules that impose liability as a means to secure a fair distribution between parties, particularly of the strict liability doctrine. (8) Analogous to tort's distribution of wealth from defendant to plaintiff, criminal rules often distribute punishment to defendants in order to secure a good such as compensation, satisfaction, or "closure" for victims. (9) Today, the distributive aspects of criminal law are quite visible, as discourse regarding closure and "making victims whole" normatively endorses that criminal law should ensure a fair outcome by distributing pain to offenders and thereby satisfaction to victims. (10)

Despite the fact that certain criminal policies have long reflected distributive values, (11) and distributive sentiments are apparent in the ideology and policies of the victims' rights movement, (12) penal theorists and criminal law scholars virtually ignore the possibility of a distributive theory of punishment. Consider Sanford Kadish's argument:

It is hard to see ... how inflicting pain on the criminal restores anything--certainly it doesn't restore the victim to his property or compensate him for his economic loss or for his medical expenses and pain and suffering. And even if it somehow did, in the unpalatable sense that the victim received a restorative amount of pleasure from the offender's suffering, it is not the morality of retributive punishment that would have been demonstrated, but the desirability of satisfying the vengeful feelings of the victim, which is not the same thing. (13) Theorists also assert that criminal law's exclusive blaming function makes the question of distribution misplaced. (14) However, in recent times, scholars have noted the many ways in which tort theory and criminal law theory overlap. (15) Moreover, financial restoration through tort suits is not the principal distributive intervention sought by victims' rights advocates, and lawmakers are responsive to the restoration-through-punishment argument. (16)

Understanding the distributive basis of criminal law and its current popularity reveals an interesting political contradiction. Redistributive programs have historically been products of left-progressive politics, engendering counterattacks from the right. (17) In the late nineteenth and early twentieth centuries, concern over legislatures' distributionist use of police power (18) prompted a legal response that emphasized property rights and freedom of contract. (19) Despite the decline of Lochnerism, over time, liberalism (meaning rights-regarding not left-leaning) became the dominant mode of legal reasoning for both conservatives and progressives. (20) Today, redistribution is a principal normative evil to conservatives, (21) marginally useful to mainstream Liberals, (22) and appealing only to leftists.

Many consider state regulation of one individual to establish some level of welfare for another fundamentally unjust. (23) The standard libertarian view endorses as its utopian vision a society in which atomistic individuals pursue any private end, and the government plays the minimal role of protecting a bare-bones set of rights. (24) This antidistribution narrative has been popular since the 1970s, (25) when politicians capitalized on public dissatisfaction with Great Society policies and government spending to popularize the hyper-individualism ethic. (26) At the same time, a parallel justification for limiting distribution arose in the form of economic arguments about efficiency. (27) Today, efficiency concerns and liberalism meld to form a neoliberal paradigm that conceives of the pursuit of capital as one, if not the most, fundamental right. (28) The criminal system, however, appears insulated from these principles. (29) Critics thus note with irony that the criminal regulatory system has grown to embody a massive and inefficient taxing-and-spending program that distributes funds to carceral programs nearly exclusively for the poor. (30) The substance of criminal law also became more distributionist as considerations of culpability and deterrence gave way to concerns over victims' interests. (31)

This Article offers an analytically descriptive account of facets of criminal law as distributive phenomena. Criminal laws are distributive when they mete out punishment for the primary purpose of ensuring victim welfare. A question might arise whether it is desirable or morally appropriate for the government to use criminal law to distribute pleasure to victims. Whether and to what extent criminal law should incorporate victim welfare as a consideration cannot be answered in the abstract any more than the question of what should be taxed and how much. Nevertheless, a cogent argument may be made that ensuring victim welfare through punishment is bad policy because victims actually heal through forgiveness, (32) or because in certain circumstances jailing offenders makes victims worse off. (33) One could also critique incorporating victims' interests into criminal policy on the ground that it inevitably strengthens the current oppressive carceral state. (34) These arguments do not establish that distributing through criminal law is inherently bad, just that it appears unjustified in its current form and context.

Proving that the criminal law should never engage in distribution, however, is not the goal of this Article. Rather, the Article seeks to demonstrate two things. First, it will show that much of criminal law is actually distributive, rather than retributive or utilitarian, a possibility ignored thus far in the penal literature. (35) Second, it will undermine the claims...