22 Pages Posted: 7 May 2008
I draw on accessorial liability jurisprudence in an attempt to outline the moral limits of criminalizing people for merely influencing the criminal choices of others. A person's conduct is a remote harm when it is harmless but for the fact that it encourages another independent party to commit a harmful criminal act (a primary harm). For example, the broken windows thesis holds that minor incivilities (such as passive begging) are a precursor to more serious crime. Passive begging allegedly sends a signal to criminals that the broken windows area is unpoliced and is an easy target for crime. The beggars are criminalized to deter independent parties from committing crimes in the broken windows area. In this paper, I object to this kind of criminalization because it contravenes the requirements of fairness and individual responsibility,because it aims to punish people for the inadvertent consequences of their actions. I argue that a person should only be held responsible for another's criminal harm when she is normatively involved in it. What is needed are normative reasons for stating from an ex ante perspective that it will be fair to hold X morally responsible for S when it causes Y to do harm N. If this requirement is satisfied then there will be a prima facie case for criminalization. I argue that a person is normatively involved in another's crime when she knowingly assists or intentionally encourages that crime. In addition, a person can become normatively involved in another's criminal harm by underwriting it. I also assert that the fairness constraint should only be overridden as a matter of necessity to prevent harm of an extraordinarily grave kind and that the broken windows harm does not satisfy this requirement.
Keywords: criminalization, accessory, liability, harm, jurisprudence, morality, objectivity, morals
JEL Classification: K14
Suggested Citation: Suggested Citation
Baker, Dennis J, The Moral Limits of Criminalizing Remote Harms. New Criminal Law Review, Vol. 10, No. 3, p. 370, 2007. Available at SSRN: https://ssrn.com/abstract=1130052