Why Does the Criminal Law Care What the Lay Person Thinks is Just? Coercive Versus Normative Crime Control

The criminal law codification movement of the 1960's and 70's was guided by instrumentalist principles designed to reduce crime, rather than retributivist notions of giving offenders deserved punishment. The Model Penal Code, which served as a model for nearly all of the period's code reforms, was explicit on the point: The Code's dominant theme is the prevention of offenses and its major goal is to forbid and prevent conduct that threatens substantial harm . . . . Yet, as Part I of this article shows, even from such a staunchly instrumentalist code came a criminal law that defers to lay persons' shared intuitions of justice on a vast number of issues touching essentially all criminal cases. Why should this be so? Lay intuitions of justice hardly produce a distribution of criminal liability that maximizes deterrence, incapacitation, or rehabilitation, the traditional crime control mechanisms. In fact, as Part I makes clear, reliance upon lay intuitions of justice commonly undermines the operation of these mechanisms. Why, then, should modern American code drafters follow an unspoken principle of heeding lay intuitions of justice? One explanation is that the drafters have an unexposed retributivist streak, that they have retained the natural impulse of most lay persons to think of criminal liability in terms of desert. If this were the case, the drafters' focus on instrumentalist arguments in explaining and justifying their code provisions would seem less than forthright. But there is another explanation, in which the drafters' concern for lay intuitions of justice is justified by an instrumentalist rather than retributivist rationale: They may have believed that effective crime control requires a criminal code that is seen as adhering to the community's shared perceptions of just desert. While the Model Penal Code drafters offer no defense of this position -- indeed, the principle itself is unarticulated by the drafters, even as they seem to follow it -- Parts III and IV offer arguments in its support. It is argued there that the perception of a criminal code as doing justice is necessary for the code's moral credibility, which in turn is necessary for the effective crime control that the drafters seek. It is necessary because the extent of criminal law's moral authority determines the extent of its ability to influence people's conduct through normative forces and to shape community norms. Such use of a criminal code's normative powers represents a qualitatively different crime control strategy than the traditional mechanisms of deterrence, incapacitation, and rehabilitation. The latter might be called coercive crime control. They seek to prevent criminal conduct through coercive official action, most commonly in the form of threat or restraint. The crime control power of criminal law's moral credibility works in a different way. The normative crime control mechanism, as it might be called, does not shape desires by threat of official sanction, as deterrence does, or through a coercive regime of official therapy or treatment, as traditional rehabilitation does. Nor does it simply give up on altering desire and simply detain, incapacitate. Instead, it works through unofficial avenues to bring the potential offender to see the prohibited conduct as unattractive because inconsistent with the norms of family or friends and, ultimately, unattractive because inconsistent with the person's own internalized sense of what is acceptable. Not every potential offender is amenable to this normative pressure, but many if not most non-offenders may be non-offenders because of it. Thus, code drafters must worry not only about controlling the hardest core amorals among us but also must maintain the criminal law's influence in keeping law-abiding that vast proportion of the population for which normative crime control is important, perhaps more important than the coercive. The end result of such concerns for law makers, as we shall see, is a system that may be highly instrumentalist in orientation but does not stray far from lay intuitions of justice. And, when it does stray, it does so in a way that obscures the deviation. The proposed answer to the title question, then, is that the criminal law, even a highly instrumentalist one, cares about lay persons' intuitions of justice because criminal law's power to influence conduct may reside in large part in its normative rather than its coercive crime control mechanisms, and effective normative crime control requires a criminal law that has moral credibility within the community it governs. The article is being prepared for an Olin conference at the University of Virginia Law School in February, 2000, on the role of law in shaping social norms.