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Abstract Risk and the Politics of the Criminal Law

30 Pages Posted: 10 Nov 2013  

Brenner M. Fissell

Georgetown Law

Date Written: 2013


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.

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

Suggested Citation

Fissell, Brenner M., Abstract Risk and the Politics of the Criminal Law (2013). American Criminal Law Review, 2014 Forthcoming. Available at SSRN:

Brenner Fissell (Contact Author)

Georgetown Law ( email )

Washington, DC 20057
United States

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