Harm, Sex, and Consequences
54 Pages Posted: 9 Aug 2018 Last revised: 27 Aug 2018
Date Written: July 24, 2018
At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for re-examining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly-impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reigning in a system that seems to be ever-expanding, and reframing a criminal legal theory that has grown ambivalent about this expansion.
Keywords: criminal law, criminal procedure, criminology, criminal justice, criminal justice reform, race, overcriminalization, mass incarceration, legal theory, theories of punishment, criminal legal theory, sex work, prostitution
JEL Classification: J21, J7, J48, J46, K13, K14, K42, Z1, Z18
Suggested Citation: Suggested Citation