Abstract

http://ssrn.com/abstract=2351986
 


 



Abstract Risk and the Politics of the Criminal Law


Brenner M. Fissell


Georgetown Law

2013

American Criminal Law Review, 2014 Forthcoming

Abstract:     
Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk. Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk. What these defenses implicitly assume, though, is that the entity the individual must defer to — the legislature — is itself superior at risk assessment. This Article attacks this supposition, and discusses the problematic features of legislative deliberation regarding risk in the criminal law. Many extraneous considerations often enter, and certain inherent features of these bodies make them especially problematic. Defenders of abstract endangerment statutes, then, ought not simply assume that the legislature is epistemically superior to the individual, and bear a greater justificatory burden than they have satisfied thus far.

Number of Pages in PDF File: 30

Keywords: risk; criminal law; criminalization; public choice; legislative deliberation

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Date posted: November 10, 2013  

Suggested Citation

Fissell, Brenner M., Abstract Risk and the Politics of the Criminal Law (2013). American Criminal Law Review, 2014 Forthcoming. Available at SSRN: http://ssrn.com/abstract=2351986

Contact Information

Brenner M. Fissell (Contact Author)
Georgetown Law ( email )
Washington, DC 20057
United States
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