A Distributive Theory of Criminal Law

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment--retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare. This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms. Understanding much of modern criminal law as distribution highlights an interesting political contradiction. For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or "rights") in order to ensure the welfare of another. But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims. Exposing criminal law as distributionist undermines these individuals' claimed pre-political commitment against government distribution. [A]s a simple matter of distributive justice, a decent and compassionate society should recognize the plight of its victims and design its criminal system to alleviate their pain, not increase it. Anthony Kennedy (1) TABLE OF CONTENTS INTRODUCTION I. DISTRIBUTION IN TORT AND CRIMINAL LAW A. Fault, Utility, and Distribution in Tort Law B. Retribution, Utility, and Distribution in Criminal Law II. DISTRIBUTION EXPLAINS CLASSIC CRIMINAL LAW QUANDARIES A. Felony Murder B. The Attempt-Crime Divide III. DISTRIBUTIONIST SENTIMENTS UNDERLIE MODERN PENOLOGY A. Distribution in the Victims' Rights Movement B. Distribution in Criminal Law Reform 1. Sentencing Reform 2. Victim Impact Evidence Law IV. POWER, POLITICS, AND DISTRIBUTION'S FATE CONCLUSION INTRODUCTION For centuries, penal theorists have debated the ethical origins of criminal liability and punishment. From the collective theorizing of thousands of the brightest minds, tomes of legal literature, and hundreds of years of debate, two predominant justifications of criminal punishment have emerged: retributivism and utilitarianism. (2) Although there are multiple twists on these themes, the basic concept is that criminal liability is justified either because the offender deserves punishment (3) or because punishment makes society safer, whether through deterrence, rehabilitation, or incapacitation. (4) The goal of this Article is to demonstrate that, contrary to most conventional thought, the philosophy underlying many areas of modern American criminal law has less to do with fault or utility than with distribution. Distribution involves fashioning legal rules to achieve a desirable equilibrium between specific individuals or between individuals and society. (5) In private disputes, when two persons' interests conflict over a scarce good, a distributive principle dictates that the resource be allocated in a just way, which may or may not involve rights claims or maximizing utility. …