“Not only Injurious to Individuals, but Dangerous to the State”: A Theory of Disaster Crime

DOIhttps://doi.org/10.1108/S1521-6136(2012)0000017005
Published date29 October 2012
Pages19-41
Date29 October 2012
AuthorSusan S. Kuo
“NOT ONLY INJURIOUS TO
INDIVIDUALS, BUT DANGEROUS
TO THE STATE”: A THEORY OF
DISASTER CRIME
$
Susan S. Kuo
ABSTRACT
Purpose This study explores legal justifications for applying an
enhanced criminal sanction to wrongs committed before, during, and
after disasters.
Design/methodology/approach This study uses recent social science
evidence to evaluate the need for criminal statutes covering looting, price
gouging, and other disaster-related offenses. Further, this study consid-
ers a broader historical context, identifying intersections of disaster
crime and the common law’s treatment of riots and public disorder.
Findings Although individual disaster victims and communities are
vulnerable to criminal harm, and this vulnerability often appears to moti-
vate the punishment of disaster-related crimes, it is not the only or even
the strongest justification available. As an alternative approach, one
could focus on the public dimension of the harm disaster-related
$
Ratcliffe v. Eden, 98 ENG.REP. 1200, 1202 (K.B. 1776) (Lord Mansfield, J.).
Disasters, Hazards and Law
Sociology of Crime, Law and Deviance, Volume 17, 1941
Copyright r2012 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1521-6136/doi:10.1108/S1521-6136(2012)0000017005
19
crimes are particularly pernicious because they threaten to undermine
the legitimate governing authority of the state.
Originality/value of paper The public-order thesis yokes current legal
doctrine to longstanding common law themes and, in so doing, departs
from conventional justifications for the enhanced punishment of disaster-
related crime. The critical perspective offered here could be extended to
criminal penalty enhancements more generally. Moreover, because the
rationale for identifying and punishing wrongful conduct is the funda-
mental question of criminal law, even a modest reassessment has poten-
tially far-reaching implications.
INTRODUCTION
The criminal sanction applies to wrongs that, apart from their impact on
any particular victim, are also “a breach and violation of the public rights
and duties, due to the whole community, considered as a community, in its
social aggregate capacity” (Blackstone, 1922, p.5). Within the category of
crime, some criminal acts are more wrongful than others, either because of
the state of mind of the actor (mens rea), the harm caused to society, or
both. Disaster-related crimes are especially egregious violations of the
social compact; they feed upon conditions of chaos, impede effective disas-
ter recovery, and belie the fundamental premises of community. As such,
they pose a direct threat to the state.
This chapter asserts that “disaster crimes” merit special severity in pun-
ishment and offers a novel, though historically grounded, public-order
rationale to support the assertion. Not only do such crimes victimize people
who are unusually vulnerable and have already suffered harm, as many
states have already recognized, but they belong to a class of offenses long
treated at common law as distinctive in that they challenge the authority of
the sovereign and are “dangerous to the state” (Ratcliffe v. Eden,98ENG.
REP. 1200, 1202 (K.B. 1776) (Lord Mansfield, J.)). Indeed, the argument for
identifying and punishing a special class of disaster crimes can be traced to
the English Riot Act of 1714 and to conceptions of communal responsibility
for maintaining public order that predate the Norman Conquest.
The chapter proceeds as follows. The first section contends that crime,
including but by no means limited to looting, is a predictable conse-
quence of disaster and that criminal law is, therefore, an important com-
ponent of disaster preparation and response. The second section surveys
existing state laws that target disaster crimes and observes that the
20 SUSAN S. KUO

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