25 March 2009

In the Name of Justice: Posner v. Hart

{1}About 3 weeks ago, CATO sent me a copy of "In the Name of Justice" so that I could read through it and comment here on CrimLaw. It's a series of replies to Henry Hart's 1958 article "The Aims of the Criminal Law." As such, it's difficult to review the book as a whole, so I thought I'd discuss Professor Hart's article and Judge Posner's reaction.


{2}Hart is an idealist. His overarching ideal is that the purpose of criminal law is to instruct people as to what society views as the absolutes of proper behavior (this far and no further). His definition of criminal law is "community condemnation of antisocial conduct" combined with "the imposition of unpleasant physical consequences." He walks a line between deterrence and rehabilitation, rejecting both as the ultimate goal of criminal law. Deterrence is rejected as negative while the purpose of the law is positive; a person is to make his own moral choices and the knowledge of the consequences of his acts shall train him to make the proper choices. Rehabilitation is rejected because it views the offender as someone who is defective and removes the responsibility of his choices from him; one cannot make moral choices without being responsible for the act and consequences flowing from that action. Succinctly, criminal law lays down the minimal societal parameters within which moral actors can, of their own free will, choose to act and, if they fail in their choice, have knowledge of the consequences they face.

{3}Hart posits two corollaries to his theory. The first is that strict liability has no place in the criminal law. This boils down to lack of knowledge and thus lack of intent. A moral actor cannot make a free will choice if he does not know there is a choice to be made. Hence, the entire purpose of the criminal law is made void.

{4}The second corollary is that punishment should be no more severe than necessary. It should both express the community's condemnation and be tailored to returning the offender to society as soon as possible as "responsible and functioning member of the community."


{5}Posner is of a different stripe. It's difficult to suss out exactly what Posner's position is, but he very clearly, and rather crudely, opposes Hart. He rejects out of hand Hart's premise of criminal law as a positive instructive force for teaching people to act as society expects.

{6}As to Hart's first corollary, the rejection of strict liability, Posner's having none of it. He strongly embraces a "steer clear" credo. If it's strictly liable people will steer very wide of anything which might cross that line. Posner also rejects the balance to which Hart attaches to the second corollary. He sees the punishment as far more important than any stigma attached to a conviction. "[T]he function of punishment is to deter crime by subjecting the criminal to a degree of disability that exceeds the utility he would obtain from the crime."

{7}He eventually gets to his rejection of Hart's premise. The government cannot press morality upon the public. Rather, the public condemnation of certain acts forces the government to illegalize them and attach a punishment appropriate to the public's level of condemnation of these acts. He ties all this to vengeance as a utilitarian tool for the implementation of retributive justice (although now supplanted by professional career incentives with the development of professional law enforcement and prosecutors). Posner never defines criminal law himself, but seems to adopt James Fitzjames Stephens': "[B]efore an act can be treated as a crime . . . it ought to be of such nature that it is worth while to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it."

{8}As a parting shot, Posner inflates Hart's position to one of Kantian/Protestant moral responsibility and then shoots down this straw man by pointing to the fact that different people performing exactly the same act can be punished differently depending upon the consequences of that act.


To begin with, esthetically Hart's article is much better written than Posner's. Part of this is because Hart's article is less cramped at 6 times the length of Posner's and is an argument in favor of a position, rather than a reaction. Part of it is that Posner's response is just poorly written. Still, the important considerations are actually the arguments being made so let's consider them.

Hart's basic premise of criminal law as an incentive and stigmatizing tool to train people to be honest is true in the great majority of cases {1}. Honest people knowing an act to be illegal do not partake of that act. Posner's argument against Hart's social organization principle is that {7} the government can't do this because the violative acts are things which the populace already condemns and forces the government to adopt because of its condemnation. This is a distinction without a difference. Social training is not something which ends at a particular moment. It is a continuing process. There will always be outliers and youths who have not yet learned proper societal behavior. When the populace presses upon its government criminal laws it is setting up a continuing set of rules by which these people will know the consequences of their choices and thus fall under Hart's premise.

However, while Hart's second corollary is solid in concept, I think Posner is correct in rejecting the method by which Hart envisioned its implementation for offenders. Hart is entirely too optimistic about the continuing ability of the mere stigmatization of an immoral choice being able to affect the choice of a moral actor. Stigmatization works to keep honest people honest and perhaps with those convicted the first time (maybe the second). Thereafter, it is almost certainly a failed endeavor. As I've previously stated, "Once a person has demonstrated that he cannot, or will not, conform to basic societal norms removal from society as a protective measure becomes the only way to deal with the offender." Posner is also correct in his assertion that in serious cases the way in which society shows the act to be morally reprehensible is through the imposition of stiff punishment and that a failure to do so damages the system.

Nevertheless, Posner's consequetialist argument is a red herring {8}. The fact that different punishments can flow from the same act depending on the consequence does not remove the possibility of conviction as a moral consequence to an immoral actor. In actuality, the moral actor faces the most severe punishment every time he makes an immoral decision which might result in more than one punishment depending on consequences.

Turning to strict liability in criminal law, Hart has by far the better argument; it does not make sense to punish people for things they did not intend or intend to recklessly risk. However, Posner's position is at least prevalent here in Virginia.
[C]ourts construe statutes and regulations that make no mention of intent as dispensing with it and hold that the guilty act alone makes out the crime.
Posner roots his anti-intent argument in the "intent's hard to prove" vein and the it'll make people steer clear justification (the Virginia Supreme Court's reasoning is basically "'cuz we said so"). It is, of course, sometimes hard to prove intent. In fact, trials are often held because a pesky defendant has decided to assert that his intent was other than to commit the act of which he is charged.

Posner's critique rings hollow. UPS, FedEx, Postal drivers (et cetera) should not be held strictly liable for the fact that drugs are, most assuredly on a daily basis, being shipped illegally in their trucks. There are, of course, other situations in which a driver might act in a manner indicating willful ignorance and that's why we have juries and jury instructions
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:

1. Actually suspected that (he/she) might be involved in criminal activity;


2. Deliberately attempted to avoid taking steps to confirm or deny those suspicions;


3. Did so in order to provide (himself/herself) with a defense in the event of prosecution.
This is why we put 12 people in the box - to use their combined experiences and apply their common sense to real world situations in order to decide whether the driver has engaged in deliberate ignorance.

On the other hand, Hart's theory has no problems with willful blindness. It's not even an exception to the rule. Willful blindness is a violation of minimal societal rules in that it is a purposeful omission of action in the face of likely criminal activity in order to allow one's own ignorant participation in that same criminal activity.

Posner's strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. "The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense." (p. 97)

This pretty much brands Posner as someone who has not had actual trial experience. He's never seen that trial wherein the immature 18 year old defendant (looking all of 14) has "raped" the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y'know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I've seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the "justice" of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning. Ignore the facts; ignore justice as it applies to a particular situation; chug along with statistics and plow under any sap stupid enough to get in the way of that broad prophylactic line meant to protect innocents from evil doers by destroying anyone (moral or not) who gets near the line.

In the Name of Justice

Now you see why I couldn't do a review of the entire book. Just imagine this same sort of post repeated for each and every author who replied to Hart's article. I commend this book to you all and hope you spend some time thinking about the theory behind the things that we do.


Anonymous said...

In many states it is a defense if the accused did not know the minor's age or was lied to by the minor.

Anonymous said...

I wonder why Cato sent the book to you but not to any of the CDLs? Must be good judgment.

Ken Lammers said...


IDK, I get asked to review books all the time by different publishers. I set down a rule long ago that I would only review non-fiction and preferred books on theory, interpretation, legal history, etc. CATO got it and now just sends me books. I'm not complaining.

As for this book, I think that CDL's would find parts of it very interesting. Go make Tim Lynch a penny or two and buy it. It'll give you months of stuff to react to at Simple Justice.