The Elusive Object of Punishment
45 Pages Posted: 11 Dec 2017 Last revised: 11 Mar 2018
Date Written: December 5, 2017
As all observers of the justice system recognize, criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that isn’t widely appreciated: parties may agree on a statute’s elements yet disagree about the identity of the wrong the statute aims to punish. One goal of this essay is to show that these unexamined disagreements about the identity of statutory wrongs underlie or exacerbate an assortment of familiar disputes concerning matters of jurisdiction, justification, and accountability — disputes over venue, vagueness, and mens rea, disputes over the propriety of enacting quasi-malum prohibitum offenses like DUI and statutory rape, disputes over whether an offender’s sentence is proportionate to his offense, and disputes over whether the offense itself is a legitimate object of punishment, the last of these disputes lying at the heart of constitutional challenges to hate crime penalty enhancement laws and bans on “simulated” child pornography. As the essay shows, all of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish. These deeper disagreements can be surprisingly hard to resolve, and it is another goal of this essay to explain why. Thanks to the complex inner structure of our penal laws and the discretionary mechanisms of their administration, the object of an offender’s punishment can be elusive and obscure.
Keywords: criminal law, punishment, mens rea, statutory interpretation, terrorism
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