25 Pages Posted: 24 Sep 2008 Last revised: 2 Jun 2017
The enforcement of criminal prohibitions plays a major role in regulating the risk and existence of socially undesirable conduct. In playing that role, criminal enforcement is often justified on the basis of consequentialist ideas related to deterrence, incapacitation, and the shaping of social norms and preferences. But that preventive role is often subject to considerable debate. This paper analyzes the potential role of criminal enforcement in regulating risks by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly stable or convincing lines excluding risk regulation from its domain. Distinctions between administrative regulation and criminal enforcement therefore blur on the issue of whether preventing harm and regulating risks are crucial goals, but remain important with respect to matters such as type of sanction available (a commonly appreciated distinction) and type of agency used for enforcement (a less-commonly appreciated distinction).
Second, the analysis trains attention on preventive enforcement in a world where social regulation faces a variety of institutional constraints and where multiple political dynamics drive expansive criminal liability. In such a world, a coercive and costly darker side of criminal justice coexists with the socially-valuable institutional characteristics of law enforcement organizations. As examples from food and drug regulation, environmental policy, and national security demonstrate, the mix of unique sanctions and procedural constraints associated with criminal enforcement have distinct institutional effects on public agencies. Specifically, the criminal justice system is capable of fostering a measure of autonomy that often eludes conventional regulatory agencies, provides incentives for investigative competence, and creates contextual effects in the choice of sanctioning regime, allowing politicians to signal the national state's competence to a potentially skeptical public.
This perspective does not necessarily legitimize all preventive criminal enforcement. Instead, three major implications follow from the analysis. (1) Policymakers should rethink the unfavorable comparisons of law enforcement to intelligence agencies in the national security context. (2) Society should recognize that circumscribing preventive criminal liability has subtle and underappreciated costs for regulatory policy. (3) Scholars should better appreciate the interdependence between legal mandates and the evolution of organizations. By ignoring or minimizing the importance of criminal enforcement's distinctive institutional structure, however, scholars and policymakers have often misconceived the central role of criminal enforcement agencies in advanced industrialized states, providing policy prescriptions that are at best incomplete and at worse perverse and highly problematic.
Keywords: Criminal justice, risk regulation, organizations, bureaucracy, administrative law, political economy of discretion, health and safety, national secur
JEL Classification: K14, K20, L22
Suggested Citation: Suggested Citation
Cuéllar, Mariano-Florentino, The Institutional Logic of Preventive Criminal Enforcement. Stanford Public Law Working Paper No. 1272235. Available at SSRN: https://ssrn.com/abstract=1272235 or http://dx.doi.org/10.2139/ssrn.1272235