Much of the criminal law contains what theorists call "abstract endangerment" statutes--laws that punish not actual, but hypothetical, creation of risk. For example, consider the criminalization of underage alcohol possession, ostensibly targeting the risk of irresponsible overconsumption: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly "abstract": many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws mainly emphasize the deficiencies of individuals in assessing their own risk. What these defenses implicitly assume, though, is that the entity the individual must defer to--the legislature--is itself superior at risk assessment. This Article attacks this supposition, and discusses the problematic features of legislative deliberation regarding risk in the criminal law. Many extraneous considerations often enter in, and certain inherent features of these bodies make them especially problematic. Defenders of abstract endangerment statutes, then, should not simply assume that the legislature is epistemically superior to the individual, and they bear a greater justificatory burden than they have satisfied thus far.
A large swath of the contemporary criminal law consists of what are called "abstract endangerment" statutes--laws that punish not the creation of risk, but the potential creation of risk. These statutes prohibit certain conduct that, when undertaken, is usually dangerous to oneself or others in a certain way. One example is the speed limit: in many cases a violation creates risk of harm, but in many it is entirely safe. The primary intuitive and theoretical problem with these statutes, then, is their overinclusion.
Various eminent scholars have wrestled with these laws--how can they be justified if all crimes must somehow be seen as wrongful, yet many violations of these kinds of statutes will create no risk of harm at all? (1) For deterrence theorists this is easy: these rules reduce risk on the whole, and therefore violations thwart the achievement of the greater good. For retributivists, overinclusion is defended because even those who create no risk of harm still act in a blameworthy manner--they are arrogant or selfish. Wrongfulness is thus established by both theories. These scholarly defenses focus on the possible deficiencies of an individual's ability to assess risk in his own case, and the resultant problems and their implications. (2) For various reasons, it is argued that it is better to entrust judgments about riskiness to the legislature. (3)
Implicit in both the retributive and the deterrent defenses of abstract endangerment, though, is an assumption that the subject of comparison with the faulty individual--the legislature--is itself superior, and will have fewer or less egregious deficiencies. However, theoretical responses to these statutes have failed to investigate this proposition, and have uncritically accepted that the legislature will be better at assessing risks. This Article is an attempt to address this issue, and it refuses to accept that legislative wisdom can be safely assumed. In fact, further inquiry shows that many of the same deficiencies that taint individual risk assessments are also present (and are often more aggravated) when a collective political body makes risk determinations.
Because epistemic deficiency is similarly a problem with respect to legislative risk assessments in the criminal law, the theoretical defenses of abstract endangerment statutes require far more support for their implicit claims. Deference to the legislature (in the form of an abstract endangerment statute) based upon any supposedly superior knowledge cannot simply be assumed. Rather, the legislature's superiority at risk assessment must be demonstrated in the specific case.
The Concept of Abstract Risk, and its Place in Criminalization Theory
An abstract endangerment statute prohibits conduct that creates a risk of harm only "in the abstract"--that is, actual endangerment or creation of risk is not an element of the crime, and certain non-risky tokens of the crime type are still included. (4) Another helpful label is that of "proxy crime," in that the conduct that is included as a statutory element is but a proxy for the risk that said conduct is expected to create in the majority of cases. (5) The most common examples used in the literature are drunk driving statutes and sexual consent age minimums. (6) In both, there will usually be a risk of harm created when one engages in the prohibited conduct, but non-risky cases are imaginable: a driver with a very high tolerance, or the unusually mature teenager. As Markus Dubber writes, "the point of these offenses is the identification and neutralization of sources of danger, that is, threats of threats." (7) Harm itself is not directly prohibited, nor is risk of the harm--instead it is the expected or potential cause of the risk.
What connects the background goal of harm prevention to the actual statute is the judgment that the conduct so often creates the risk that, even though this is not always the case, no instances of the conduct should be permitted. This type of reasoning is consequentialist, and accepts the overinclusiveness of the prohibitions. (8) For deterrence theorists, overinclusion is acceptable because it leads to a net reduction of harm--the greater good.
Overinclusion is clearly more problematic for retributivists, though (these theorists allow for punishment of conduct only when conduct gives rise to personal desert). (9) This is easy to posit when the conduct creates harm (or risk of harm),10 but with our non-endangering outlier cases, it is stipulated that no risk of harm is created. With no harm, how can these be seen as wrong? This is the central retributive question regarding abstract endangerment and is the cause of its somewhat ambiguous place in criminalization theory. Before turning to scholarly responses to this problem, it will be helpful to consider more closely how this phenomenon works in the actual criminal law.
Examples & Typology
Prior commentators, while recognizing the phenomenon of abstract endangerment, underestimate its prevalence." Discussions mostly focus on the examples of drunk driving and sexual consent, but these kinds of statutes are far more widespread: they come in many forms and protect diverse societal interests.
By far the most common abstract endangerment statutes today are those that prohibit specific conduct (as opposed to generalized prohibitions on risk). (12) These so-called "ad hoc" endangerment statutes--both of a concrete and an abstract form--have long proliferated in American criminal law, and it was their supposed randomness that made them a target of reform by the American Law Institute. (13)
A very popular form of the abstract endangerment crime involves the specification of a numerical floor or ceiling. The quantity delineated represents a feature inhering in certain conduct, with risk of harm expected to increase or decrease as the conduct strays further or stays closer to a given number.
Many of these numerical rules function as thresholds proscribing conduct for people beneath (14) a certain age: consumption and possession of alcohol by those under twenty-one, (15) sexual activity by or with someone under sixteen, (16) possession of aerosol spray-paint by those under eighteen, (17) or, recently, text-messaging of explicit images while under sixteen. (18) Age-based abstract endangerment crimes implicitly rely upon a calculation that certain conduct is more risky when it is undertaken by those who are more youthful, but this is not always the case. Obviously, many mature twenty year olds will be able to drink alcohol as (or more) responsibly than those who are twenty-one.
Other numerical rules delineate between acceptable and unacceptable physiological states. Most ubiquitous is the prohibition of driving while "intoxicated," defined as having a blood alcohol content of .08. (19) Alcohol-related limitations are also common in the operation of other machinery and the piloting of airplanes. (20) Here, the risk comes from the approach one makes towards a certain physiological "state" that has no clear ending or beginning point--many will be "intoxicated" at .08, but many will not be.
Numbers proscribe or permit conduct in many other areas as well. The speed limit for driving a car is really an abstract endangerment statute, as expert handlers could exceed sixty-five miles per hour without creating any risk, and many of us do so on a regular basis. (21) Environmental crimes are often triggered by a certain numerical limit on "parts per million" in a given emission, even though this may not map cleanly onto the risk of actual environmental harm. (22) Financial crimes are also often aimed at risk, which is in turn approximated by a numerical indicator--the new Dodd-Frank Act is almost entirely preoccupied with recognizing financial risk and preventing its actualization. Some important provisions include a prohibition on banks owning more than three percent of a hedge fund and a prohibition on mergers if the acquiring entity is more than ten percent in debt. (23) Finally, we could think of the various crimes that limit the amount of campaign donations that can be given in an election, or the limitations on gifts to sitting officials--these specify a ceiling, but corruption or improper influence clearly do not precisely correlate with a given dollar amount. (24) Numbers also criminalize conduct in many industrial or workplace safety contexts. Two older (but still valid) examples will suffice. In New York, "ice cutters" are required to erect fences around their cuttings until the ice reaches three inches in thickness. (25) In California, it is a...