Thursday, March 19, 2009



Everyone loves hearing about crimes. We all have a dread fascination with our society’s lawbreakers. Sometimes we love to hate them. Other times, we rally around the accused, calling his prosecution “unjust.” In still other situations, we criticize the State for prosecuting someone because he is “not bad, just sick.” We express our condemnation for people who make conscious choices that revolt us. We express our approval for people who make conscious choices we deem correct. But we express sympathy for people who have mental difficulty making any conscious choice at all. Interestingly, the result in each case may be precisely the same. Yet our law and our judgment vary depending on the circumstances surrounding the actor’s choice.

Why is choice so important to the criminal law? To answer that question, we must first understand what the criminal law is. Like no other tradition in Anglo-American law, criminal law doctrine draws upon contemporary morality. Morality is not law. Morality simply states how most people in a society generally feel about particular conduct. In other words, morality codifies popular intuition about behavior and thought. Law, on the other hand, has nothing to do with feelings or intuition. Rather, law declares categorical rules of prohibition and permission. It establishes concrete guidelines and consequences for violations. Broadly stated, human reason creates law, not intuition. Yet in criminal matters, law takes on a moral dimension. The People act through their elected representatives to enshrine their moral understandings in law. The result: Criminal law.

Moral systems develop over centuries in every society. In the English tradition, morality developed hand in hand with Christian church dogma. In fact, English common law courts routinely charged defendants with “crime and sin” in the same indictment. Sins represented moral transgressions against God’s law, while crimes represented moral transgressions against Man’s law. Today, this connection may seem untenable. Yet history explains us far better than we like to think. Sin and crime are linked because both involve moral choices. A sinner chooses to do something that God forbids. Similarly, a criminal chooses to do something that the law forbids. What, then, is forbidden? Through law, men are free to forbid virtually anything. Today, there are constitutional limitations on a legislature’s power to forbid certain conduct. But traditionally—and this remains the case—legislatures forbid conduct that most people consider “abhorrent,” “disgusting,” “dangerous,” “revolting” or “unappetizing.” In other words, they forbid things they consider “immoral.” Morality orients itself according to the average man’s sense of outrage and disgust. Not surprisingly, the criminal law follows a similar paradigm. While law may generally follow reason, criminal law is a special case. It uses reason to establish its legal authority, but in substance, it enforces popular morality.

Criminal law punishes people for choosing to do forbidden things. Choice implies that a person faces an alternative between a good path and a bad path according to moral intuition. For example, when a boy walks into a store, he faces a choice: “I can buy some chewing gum or I can steal it. This is my moral choice. I know it is wrong to steal. If I choose to steal, it would be a ‘bad choice,’ because I learned from my earliest days that stealing is ‘bad.’ But if I choose to buy, I would make a ‘good choice.’ Therefore, I will make a good choice and buy the gum.” Here, the boy acts according to intuitive moral understanding. Those intuitive moral understandings find expression in the law. The two systems are identical. It is both criminal and immoral to steal. It is criminal because the criminal statute book literally outlaws stealing property belonging to another person. It is immoral because it is “disgusting and wrong” to deny other people their intuitive property rights.

Crime and immorality are consistent in the opposite situation, too. If the boy chooses to steal, he knows he made a wrong choice. He acted immorally. In the same stroke, he violated the criminal law. Here, however, we witness the criminal law’s intimate concern with moral choice. In proving the crime, the State must show not only that the boy behaved a certain way; it must also show that he had a “bad mind” when he did. It must prove that the boy took the gum. That is easy. Yet it also must prove that, at the moment he took the gum, he knew he did not own it and that he intended to steal it. In other words, the criminal law must prove that the boy had a “bad mind.” In so doing, the State not only proves the boy a criminal. It also holds him up to moral contempt. After all, when a jury hears proof about the boy’s behavior, it also hears about his thoughts, motivations, desires and ultimate “choice to do wrong.” That shows him to be immoral, as well as criminal. And people love to hate immoral choices, because morality is intuitive. You do not need a law degree to feel outrage about revolting choices. We know them when we see them. In this way, the criminal law not only satisfies the cold requirements of reason. It also satisfies the public lust for condemning bad choices. Put simply, the criminal law does far more than prove technical elements. It provides a platform for the public to express their outrage against people who make “the wrong choices.”

Choice means everything in the criminal law, just as it means everything in morality. Choice provides a justification upon which to feel righteous outrage against “lawbreakers” and “moral deviants.” If a person knows he makes a bad choice, he cannot complain when society condemns him. From a historical perspective, common law courts reserved their harshest condemnation for criminals who made “wicked” choices. The judges routinely debated punishment to match the level of “wickedness” inherent in the criminal’s choice. A less “wicked” choice mandated a lesser punishment than a “grievously wicked” one. Even the word “wicked” reveals the intimate connection between morality and criminal law. It is an archaic word that we associate with monsters, witches and primeval demons who plot evil. It is morally charged. By using the word “wicked,” common law judges simultaneously cast themselves both as moral watchmen and as detached legal technicians. The fact that punishment depends upon the “level of wickedness” inherent in any particular choice provides further support for the assertion that the criminal law draws its entire strength from popular morality.

Morality lends itself to righteous hatred. People with a keen moral sense do not hesitate to express their revulsion at individuals who violate moral standards. When those moral standards find expression in the criminal law, criminal trials provide a popular outlet for that righteous hatred. But again, only choice arouses moral hatred. For example, most people detest killing. Yet not all killing is immoral, and not all killing is criminal. Results, in other words, do not always determine moral or legal consequences. Just because someone dies at another person’s hands does not mean the killer is immoral or a criminal. Choice determines morality and criminality far more effectively than mere results. For example, if a driver kills a pedestrian while driving drunk, we say he is far less immoral than a man who calmly murders his wife to get her life insurance money. A man is somewhat immoral when he stabs a rival in a heated argument after a “sufficient provocation.” And we say a man is not immoral at all when he shoots a robber in his home.

On these examples, we see similar results: People killing other people. Yet morality condemns some killings more than others. The law, too, makes distinctions to match the moral feeling associated with each killing. A drunk driver makes a “bad choice” because he chooses to get into a car while drunk. An ordinarily prudent man knows that driving drunk creates extremely hazardous risks. Therein lies the bad choice; the drunk driver did not choose to deliberately kill the pedestrian. He simply chose to something that caused great risk to others. That choice is immoral, but not as immoral as choosing to kill your wife in order to get her insurance money. From a moral perspective, that choice arouses more popular disgust than choosing to drive drunk. It revolts us more. It shows us that the killer had financial motives in ending another person’s life. That is more shocking, outrageous and despicable—for one moral reason or another—than choosing to drive drunk. Morality assigns the distinctions based upon the intuitive feeling associated with each choice. And the law follows suit by punishing the more “wicked” choice more severely than the “less wicked” choice. The same reasoning applies to the man who wrathfully stabs his rival in an argument. It is immoral to intentionally strike another person dead, but according to popular morality, it is more “forgivable” when the killer is “beside himself” with rage. After all, we all have lost our tempers. We know that we do not think clearly when rage overcomes us. Our choices, then, are not “as bad” as they are when we think clearly. Again, we see choice as the sole basis upon which both law and morality draw distinctions.

Finally, we do not consider it immoral at all when a man shoots a robber in his home. Popular intuition tells us that preserving our own lives is so important that it entitles us to kill someone intent upon killing us. In these circumstances, there is nothing blameworthy or “disgusting” about killing another person when you must kill to live. The law responds in kind: It is no crime at all to kill someone in self-defense. This moral distinction may reveal a society’s values more than any other. The circumstances under which a society legally permits killing candidly demonstrate what a society holds dear. While many people would not argue that killing in self-defense is justifiable, what about killing unarmed trespassers? That is legal in Texas. Because the criminal law draws on moral sources, the Texas law—at the least—expresses the moral norms of the people who made it.

Criminal law, then, provides a forum in which the public can express measured moral outrage against all kinds of “bad choices.” Choice is the touchstone. We have no trouble labeling someone “morally bad” and a “criminal” if he makes a choice that arouses sufficient public disgust. In most cases, a “bad choice” leads to “bad results” and we have no problem taking revenge on criminals because their bad choices cause tangible damage. But what happens when damage flows from people who cannot make rational choices? In other words, what about the mentally ill or—to use a less delicate, 19th Century term—“the insane?” After all, the criminal law draws its strength from morality, and no one is immoral unless they make choices that violate intuitive moral standards. Mentally ill people, however, do not possess the same intuitive understandings as “average citizens.” They do not make “choices” in the same way as an “average man.” Unlike the boy in the store who faces an uncomplicated alternative between “good” and “bad” choices, a mentally ill person does not weigh moral paths. He follows totally different mentally processes, and they are not rational. To that extent, mental illness completely derails both the moral and legal justifications for punishment based on choice. If a person does not have capacity to “choose” as we understand it, the entire punishment rationale collapses. A mentally-ill person may cause as much damage as the cruelest sane murderer, but we do not revile him as “wicked.” Rather, we pity him for his “insanity.” We do not call him “bad;” we call him “sick.” Again, we see that the criminal law depends upon choice for its thematic consistency. It assumes that people can make rational decisions in life based upon intuitive moral understandings. When a person cannot make such decisions, it becomes entirely unjust to punish him because he "makes no choice."

But mentally-ill people pose dangers precisely because they cannot make rational decisions. They act on irrational impulses, which in turn create risks for people around them. The law recognizes this. When a mentally-ill person causes harm, the law steps in to incapacitate him, not punish him. In this sense, the criminal law does not express moral outrage. It simply performs a “utilitarian” function, namely, to protect the public from dangerous instrumentalities. The criminal law performs this function even if the criminal does make rational choices, but in the case of mental illness, incapacitation is the only alternative. There is no moral dimension to these legal functions. Nonetheless, when the law takes action against the mentally-ill, it still judges. It does not act as a moral judge, but rather as a judge of “normalcy” and “fitness to live in society.” In some sense, these judgments are even more pernicious and value-based than their moral counterparts.

Criminal law fascinates us because it has a uniquely public function. Few people care about individual civil disputes between private individuals. But everyone cares about trials against notorious lawbreakers and rascals. We devour crime literature and entertainment. We relish news stories about abominable crimes and their victims. We express popular contempt for nefarious suspects. We even pause to consider whether criminals are really “bad” or whether they are “sick.” We do all these things because criminal law is intertwined with society’s basic moral sense and because criminal cases proceed in the People’s name. Like few other legal fields, criminal law captures the public imagination. We feel that we play a role because criminals attack our values as a society. And when we feel under attack, we relish the opportunity to pronounce our moral judgments against the trespasser. That is just the way we are. The criminal law simply provides us an outlet for us to condemn or approve other people’s choices.

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