Conspiracy, Complicity, and the Scope of Contemplated Crime

One of the leading casebooks for the first-year Criminal Law course begins the mens rea discussion with Regina v. Cunningham.1 Cunningham, in need of money, decided to rip the gas meter off the residential gas pipe in his soon-to-be basement to steal the shillings inside. That Cunningham was guilty of theft was uncontroversial. The problem was that Cunningham did not turn off the gas, and it seeped into the adjacent home, partially asphyxiating the neighbor, Sarah Wade. Although the case is technically about the interpretation of the word “maliciously” in the Offences against the Person Act, the lesson students are to draw from it is broader: each crime should stand on its own culpability. The criminality inherent in being a thief is not the criminality inherent in practically poisoning the neighbor. Instead, Cunningham needed to have been culpable as to the possibility of poisoning her. Specifically, Cunningham had to be reckless as to the risk of endangering life. The jury was not so instructed—reversible error

The Trouble with Time Served

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions. The bottom line is this: Time served is not a panacea. To the contrary, it contributes to criminal justice pathologies. This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted. The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds. Time served should be abandoned. Detainees should be financially compensated instead. Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants—both the innocent and the guilty—and can lead to positive reforms. Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane

Patty Hearst Reconsidered: Personal Identity in the Criminal Law

In this contribution to a symposium celebrating Joshua Dressler, I revisit the Dressler/Delgado debate over Patty Hearst through the prism of personal identity. After reviewing why personal identity presents a problem for punishment, I discuss how a personal identity defense would fit within the criminal law, including when it would undermine status responsibility, when it would undermine a voluntary act, and when it would serve as an excuse

Preventive Justice and the Presumption of Innocence

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad of possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority – the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted

Consent and Coercion

There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent. This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the involuntariness of the consenter’s choice. To deny the latter is not to deny the former. Because these are two disparate functions, much of the debate about Ansari may be commentators talking past each other. After explaining this miscommunication, this Article broadens our understanding of how the blameworthiness of the coercer can bear on the permissibility of his actions. Just as no man may profit from his own wrong, coercers may not avail themselves of consent, even if it is sufficiently “freely given” such that the consenter is not acting involuntarily. This Article claims that the wrongful coercion “normatively impairs” the coercer, and that this normative impairment is at play in other legal doctrines. With the normative grounding in place, this Article considers how and if these amendments to our view of coercion should be taken into account in the law, with a specific focus on sexual offenses. It offers a draft statute for discussion purposes, considers charges of paternalism in both the public and private sphere, and points to other reasons to be cautious about criminalization. Finally, this Article defends this view as a more perspicuous account of the normative landscape than other coercion theories. Ultimately, the goal of this Article is to define new conceptual territory for normative debate. Progress cannot be made until we ask the right questions and answer the same ones. This Article aims to provide the framework within which more nuanced discussions can be had

Prevention, Wrongdoing, and the Harm Principle\u27s Breaking Point

Review of A. P. Simester and Andreas von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Hart 2011)