Thursday, December 10, 2009



Several months ago, I wrote an essay outlining the relationship between moral choice and the criminal law. I concluded that the criminal law implicates public morality in a way that other legal doctrines do not. Specifically, I pointed out that our society relishes the opportunity to pronounce both legal and moral judgment on "deviants" who make "bad choices." Finally, I noted that in some cases, it is impossible to channel moral outrage against certain trespassers--particularly the mentally ill--because they do not possess the capacity to rationally make "good" or "bad" choices.

Yet our society enjoys criminalizing things. It is an easy way to express condemnation for shocking outrages, even if it is not the most effective response. When we pursue someone as a "criminal," we collectively say that the he "broke from the moral norm." We justify his punishment by referencing his bad moral choice. Then we feel good about ourselves when he suffers for daring to violate the moral standard. Choice is the touchstone: Criminals know the behavior that society expects, yet they knowingly choose to violate it. In this sense, the criminal law acutely relates to popular morality.

Criminal sanctions make rational sense in two cases. First, there is the moral function. Under the "morality" theory for punishment (originally championed by Immanuel Kant), the criminal law prescribes exactly enough punishment to match the moral guilt in the actor's choice. The more shocking the choice, the worse the punishment. The morality theory focuses on individual choices; it envisions a direct confrontation between the law and the criminal. Punishment in this case does not aim to intimidate others; it is a discreet affair between the sovereign and the trespasser. True, society looks on and judges the moral deviant. But it serves no utilitarian purpose beyond venting moral outrage against the individual criminal. The "morality theory" has a significant role in the American justice system, but it is even more prevalent in civil law countries like Germany and France.

In the second case, the criminal law performs a strictly utilitarian function. Under the utilitarian theory, criminal law uses punishment against one man in order to frighten others from committing the same infraction. This is called "deterrence." Its focus is not moral; it is practical. Society does not like criminal choices because they disrupt the social order and cause damage to others. Society would simply like to see fewer criminal choices, regardless of whether the criminal acknowledges his moral failing. Deterrence is all about numbers: The criminal law performs a "practical" function if it reduces the number of robberies each year. Morality is not the issue; the criminal law just wants people to refrain from making choices that hurt others. In this sense, it is "useful" for everyone in society.

So how does the criminal law induce autonomous individuals to refrain from making certain choices? Simple: It threatens punishment to anyone who dares to make the choice. It assumes that people are rational actors. It assumes that they will engage in a cost-benefit analysis before making any choice. It also assumes that they do not like punishment, so they will not make choices they know will lead to it. When the criminal law aims to fulfill a deterrence function, it is not so much concerned with the individual criminal who suffers. Rather, it is much more concerned with all the potential criminals who watch the condemned man suffer, then say to themselves: "I do not want to meet the same fate." If the punishment inspires fear in those who otherwise might have committed the same crime, it serves its purpose.

Deterrence has always been an overt goal in the Anglo-American criminal law tradition. But it has fallen into disfavor in civil law systems. The German system specifically disavows any intention to deter future criminals by punishing present ones. Kant said that using one man as an instrument to frighten others demeaned human dignity and autonomy. That sentiment has found traction in Western Europe.

But no matter what punishment system a country adopts, the criminal law still assumes that people will act rationally. If a person cannot make rational choices, he cannot know whether his choice will violate an "intuitive moral standard." He also cannot make a cost-benefit analysis before deciding whether to commit an act that will injure another. And most of all, the criminal law only works on human beings.

This is not a facetious observation. Just this week, prosecutors in Connecticut actually deliberated whether they should bring charges against a chimpanzee that brutally mauled a woman last year. They also deliberated whether they should charge the chimp's owner.

What foolishness. The fact that prosecutors even entertained the proposition to charge an animal with a crime reveals a gross misunderstanding of the criminal law's basic functions. It would serve neither a moral nor a utilitarian purpose to punish an animal. After all, animals do not make rational choices; they know only instinct. They cannot grasp intuitive human moral teachings, nor can they feel fear when they see a fellow animal punished for making a "choice." Indeed, we might even wonder whether animals make "choices" at all in the way humans understand the word. Animals do not assimilate information as humans do. Nor can they learn to adapt their behavior to meet accepted "social norms." How can the law serve a purpose when the subject cannot even use language? Law must communicate before it can have any beneficial effect on society. Animals do not communicate with language. Thus, it is absurd to even consider using criminal penalties against them when they do something outrageous.

Still, Connecticut's debate about prosecuting a chimpanzee reveals a bothersome issue. Specifically, it reveals our society's reflexive--and ridiculous--propensity to use the criminal law to address any conduct we find abhorrent. In recent decades, States have greatly expanded their criminal codes. When there is a new social issue that arouses people's anger or disgust, there is an immediate push to criminalize it. Someone doesn't wear a seatbelt? Make it a crime. Someone texts while driving? Make it a crime. Someone doesn't inspect a restaurant every two weeks? Make it a crime. Someone forgets to feed their child lunch? Make it a crime. Someone did not clean their apartment? Make it a crime. Someone puts recyclables in the trash? Make it a crime.

In short, by making all objectionable conduct potentially criminal, States have diluted what it means to make "criminal choices." They have also shown that people just like taking revenge on things, even if it does not seem reasonable.

This explains why Connecticut prosecutors thought about prosecuting the chimpanzee. When something outrageous happens--like a chimpanzee chewing off a woman's face--people in our society rush to assign blame and take revenge on the culprit. This makes sense from a human perspective; human beings naturally thirst for revenge when injured. Oliver Wendell Holmes noted in The Common Law (1881) that both criminal law and compensation law flow from the natural human anger that arises when people get hurt: When a person accidentally slams his hand in a door, he kicks the door. Or when a branch falls on a man, he burns the tree. People want to take revenge against things that hurt them, even if they are inanimate, and even if it would serve no useful or moral purpose.

Criminal law is not the same thing as natural human revenge. It is a human invention with a human focus. It enforces human norms and aims to influence rational human choices. It makes no sense to apply it to anyone--or anything--that cannot make rational choices. If the criminal law cannot either: (1) Express moral outrage against a person who knew or should have known he made an intuitively "bad choice;" or (2) Realistically frighten potential criminals by punishing a convicted criminal, then it makes no sense to apply it. Animals cannot know they make "bad choices." They do not have the capacity to grasp complex verbal communication, let alone subtle moral principles. They also cannot be frightened from acting in ways that injure humans. This is why it is utterly pointless to prosecute an animal.

Now, that does not mean humans do not feel a natural desire to take revenge against an animal that hurts them. Just as people burn trees that fall on them, they can kill animals that pose a danger. But taking bald revenge on an animal is very different from prosecuting it, then punishing it consistent with law.

For better or worse, the criminal law has come to signify "revenge" in our society. True, the criminal law undoubtedly sates the natural human craving for revenge in many situations. But it would behoove us to remember that the two concepts are not entirely coextensive. Understanding the difference saves us from embarrassing spectacles, like seriously debating whether to hale a chimp into court to stand trial.

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