Thursday, January 17, 2013
This paper byJohn Stinneford is very well done. One of the many nice moves that John makes is to connect the issue of culpability as well as the moral condemnation that sits at the heart of criminal law to the Constitution. Here's the abstract.
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.
The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.
This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.
John discusses the Supreme Court's movement toward constitutionalizing a "culpability principle" for criminal law (without actually ever going that far -- I enjoyed the discussion of Powell v. Texas). He grounds this culpability principle in various provisions of the Constitution (see pp. 665-666), most especially the 8th Amendment. There is also a very thorough discussion of several cases I did not know about, evincing in various ways the 19th and 20th century disjunction of culpability and crime, on the one hand, and the changing status of culpability as a constitutional safeguard against criminal punishment, on the other. As to the Court's proportionality decisions, John writes that in Harmelin v. Michigan the Court regrettably unmoored the issue of proportionality from that of culpability, a decision that had unfortunate but predictable consequences in Ewing v. California. And, maybe because I have been writing recently about law and tradition, I enjoyed John's discussion of the relationship between common law, morality, and criminal law.