A theory of criminal victimization.

• Author: Kleinfeld, Joshua
• Position: Abstract through II. The Concept at Work A. Legal Doctrine 2. Children, the Elderly, and the Disabled, a. In General, p. 1087-1127

Criminal punishment is systematically harsher, given an otherwise fixed crime, where victims are vulnerable or innocent, and systematically less harsh where victims are powerful or culpable. We make a distinction between one gangster attacking another and a gangster attacking a bystander (though the assaults might be formally identical) or between selling drugs to an adult and selling them to a child (though the penal code might treat the two as the same). Yet this pattern in blame and punishment has been overlooked. Criminal scholarship and moral philosophy have offered no theory by which to explain it. And, lacking a theory, the pattern itself has been missed or misunderstood empirically.

This Article sets forth the concept of "victimization"--the idea that the moral status of a wrongful act turns in part on the degree to which the wrong's victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence. It shows the concept to be implicit in both the doctrine and practice of criminal law. And it argues normatively that victimization is at the same time essential to criminal justice and peculiarly prone to illiberal distortions, and should therefore be at once preserved and constrained.

A concluding section reflects methodologically on this Article's approach to moral philosophy in lawman approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.

INTRODUCTION: THE CONCEPT OF VICTIMIZATION IN CRIMINAL LAW I. THE CONCEPT ITSELF A. Describing the Intuition B. Some Familiar Explanations That Don't Work C. A Moral Relationship D. Vulnerability and Beneficence, Innocence and Justice II. THE CONCEPT AT WORK A. Legal Doctrine 1. Naming the concept in doctrine 2. Children, the elderly, and the disabled a. In general b. Child sex 3. Combatants and adulterers B. Social Practice 1. Police a. Qualitative evidence b. Quantitative evidence 2. Capital juries a. Qualitative evidence b. Quantitative evidence III. THE CONCEPT CRITIQUED A. The Case for Victimization B. The Objection from Equality and the Victorian Compromise C. Prisoners, Prostitutes, and Moral Luck D. Self-Awareness Serves Justice CONCLUSION: CRIMINAL LAW'S IMMANENT MORAL CONTENT INTRODUCTION: THE CONCEPT OF VICTIMIZATION IN CRIMINAL LAW

This Article is about a concept at work in moral culture and criminal law that has not yet been given a name, and so it helps to start with examples. There's a character in The Wire named Omar Little who is a sort of raider: he robs drug dealers and only drug dealers, and though an aggressive, shotgun-wielding professional criminal, he is nonetheless and however ambiguously a hero in the broken social landscape the show gives us. In a climactic exchange, denounced in the courtroom because of the violent nature of his work, Omar delivers his apologia ("not an apology in our sense of the term ... but a defense" (1)). He says: "I ain't never put my gun on no citizen." (2) What I would like to understand in this Article is: why does that response make sense? And in particular, that strange yet somehow also obvious use of the word "citizen" for "noncriminal"--why do viewers understand what that term means without ever being told? The scene is effective; what is the moral logic of that effect?

Consider now a real case: in Ohio in 1997, Raymond Tibbetts killed his wife and the elderly, invalid man for whom she was a live-in nurse. (3) Both murders were unprovoked and unmitigated; both involved a ferocity of violence--stabbing and beating and the like--that cannot fail to shock and disturb; and both were submitted to the jury for the death penalty. But the jury sentenced Tibbets to death only for killing the old man, not his wife. (4) Why? The jury effectively declared that what he did to his wife was terrible, but what he did to the old man, still worse. That judgment made moral sense to the jury, and one can feel the pull of their view. But what is the view exactly? Why not think the opposite--that it is worse to harm those close to you than strangers? When judges used to give capital sentences, one would see the same pattern. In Arizona in 1986, Milo Stanley shot his wife three times in the head over a trifle, then placed the muzzle of the gun downwards against the top of the head of their five-year-old daughter and pulled the trigger. (5) The judge gave him a life sentence for killing his wife and death for killing his daughter. (6) Those accustomed to capital cases will not be surprised at these verdicts; they are familiar in type. But why do judges and juries feel this way?

Turning now to criminal theory, there is a prominent view under which, given an otherwise fixed actus reus and mens rea, the victim's characteristics should have no bearing on how wrong a crime is or what punishment it merits. A murder is a murder, whether the victim is the most vile predator or the most innocent child; the norm against killing having been violated, the punishment--the very same punishment--must follow. Our commitment to the equality of persons, the thought goes, requires upholding norms in this sort of formal, neutral way, in which the particularities of the agents on either side of the norm don't matter. And the thought is also that, since most crimes are defined by the offender's act and state of mind--his or her culpable transgression of a "Thou shalt not"--victims' characteristics are just irrelevant: if an intentional killing is a murder, it is so regardless of whether the victim is tall or short, male or female, black or white. Thus, as George Fletcher has remarked with respect to the theory of retributive justice: "You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment." (7) And thus Moore can respond: "I think victims should and must be ignored if you are claiming to be doing retributive theory." (8) Of course, Moore added, victims are naturally taken up in the criminal norms themselves: there can't be a murder unless someone is killed. (9) But he saw no role for them beyond that. That is, he saw no role for them, given a fixed crime, in answering Henry Hart's famous question (which might be criminal theory's cardinal question): "what are the ingredients of moral blameworthiness which warrant a judgment of community condemnation?" (10) Moore's assumption--the assumption that victim characteristics don't figure in the calculus of blame--is typical of the field: mainstream criminal thought has not traditionally looked upon the position of the victim as the sort of thing that needs a theory. What was distinctive about the Moore/Fletcher exchange was that Fletcher's challenge brought Moore's assumption, unmentioned throughout the eight hundred pages of his book, to the surface. Usually the assumption stays below the surface, implicit in a silence that extends from high theoretical work like Moore's to the black-letter doctrine of leading casebooks (11) and treatises (12) to the Model Penal Code (MPC). (13) And while, in the wake of the victims' rights movement, the silence has come increasingly to be noticed and remarked upon, (14) victims' new prominence has been expressed mainly in the context of criminal procedure, as with victim impact statements. The proposition that most mainstream work has not addressed--and in fact, like Moore, has implicitly rejected--is that victims might be "integrate[d] ... into the justification for punishment." (15) That is "[t]he interesting challenge." (16) As Cornelius Prittwitz has written, the fundamental idea of victimology and the theoretical center of the victims' rights movement is that one cannot "look only at the offender ... in order to understand criminal acts" but must instead view crime as "an interaction" between criminal and victim. (17) The dominant view in criminal law does not look at crime in that way, and indeed lacks the theoretical resources to look at crime in that way.

Yet surely the dominant view is partly true. A victim's race shouldn't matter if we are committed to equality, nor his social class, nor his religion. And some characteristics are indeed just irrelevant--whether a victim has blond hair or speaks with a stutter, or some such. But is the dominant view really wholly true, that is, true without exception? Is it really true that it shouldn't matter whether the victim is a child? That seems mistaken. And what if a state's criminal code says that a victim's characteristics matter in some way--that murdering a child, for example, is an aggravating factor that shifts ordinary intentional murder to some more serious category (as some do (18))? Are we then to think that no victim characteristic should matter, unless the code says it does, and then it should? That seems confused. In fact, most penal codes contain a variety of provisions--indeed, a vast array (19)--that build victim characteristics into either the definition of certain crimes (statutory rape, for example), their grading, or both. Those provisions would be incoherent if nothing about the victim could matter. Part of the office of criminal theory is to offer an account, a rationalization in the nonpejorative sense, of why our criminal law is the way it is. Criminal law does respond to victim characteristics in some instances. The dominant view seems incapable of explaining why.

Let's turn now from law to ordinary moral thought--by which I mean nothing grand or mysterious, but just those everyday intuitions of right and wrong, good and bad, sometimes reflective, sometimes not, that most people make simply in virtue of being evaluative creatures in an evaluative culture. Victims indubitably have a place here. We make a moral distinction between one...