The criminal-civil distinction and the utility of desert

Boston University Law Review

Volumn 76, Issue 1-2, 1996, Pages 201-213

  Robinson, Paul H ^a  

^a NONE

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EID: 0030526079     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (60)

1. See M.J. MEIJER, THE INTRODUCTION OF MODERN CRIMINAL LAW IN CHINA 53 (2d ed. 1967) (1949); see also VALERIE A. PENLINGTON, LAW IN HONG KONG: AN INTRODUCTION (2d ed. 1986).
2. See M.J. MEIJER, THE INTRODUCTION OF MODERN CRIMINAL LAW IN CHINA 53 (2d ed. 1967) (1949); see also VALERIE A. PENLINGTON, LAW IN HONG KONG: AN INTRODUCTION (2d ed. 1986).
3. Compare IVY WILLIAMS, SWISS CIVIL CODE: ENGLISH VERSION (Siegfried Wyler & Barbara Wyler eds., rev. ed., Remak Verlag Zürich 1987) (1925) with The Swiss Federal Criminal Code of December 21, 1937, 30 J. AM. INST. CRIM. L. & CRIMINOLOGY 1 (Walter Friedlander & W. Abraham Goldberg trans., Supp. 1939-1940).
4. Compare IVY WILLIAMS, SWISS CIVIL CODE: ENGLISH VERSION (Siegfried Wyler & Barbara Wyler eds., rev. ed., Remak Verlag Zürich 1987) (1925) with The Swiss Federal Criminal Code of December 21, 1937, 30 J. AM. INST. CRIM. L. & CRIMINOLOGY 1 (Walter Friedlander & W. Abraham Goldberg trans., Supp. 1939-1940).
5. See FEDERAL RESEARCH DIVISION, LIBRARY OF CONGRESS, SAUDI ARABIA: A COUNTRY STUDY 201-03, 278-86 (Helen C. Metz ed., 5th ed. 1993).
6. See MATTHEW LIPPMAN ET AL., ISLAMIC CRIMINAL LAW AND PROCEDURE: AN INTRODUCTION 107-08 (1988).
7. See generally RAYMOND BYRNE & J. PAUL MCCUTCHEON, THE IRISH LEGAL SYSTEM (2d ed. 1989).
8. See J. DUNCAN M. DERRETT, RELIGION, LAW AND THE STATE IN INDIA 21, 293 (1968).
9. See Peter H. Juviler, Diversion From Criminal to Administrative Justice: Soviet Law, Practice, and Conflicts of Policy, in PERSPECTIVES ON SOVIET LAW FOR THE 1980s, at 153, 155-62 (F.J.M. Feldbrugge & William B. Simons eds., 1982).
10. See generally NIGEL G. FOSTER, GERMAN LAW & LEGAL SYSTEM (1993).
11. See D.R.C. CHALMERS & A.H. PALIWALA, AN INTRODUCTION TO THE LAW IN PAPUA NEW GUINEA 142-92 (1984).
12. See generally AUSTIN KENNETT, BEDOUIN JUSTICE: LAW AND CUSTOMS AMONG THE EGYPTIAN BEDOUIN (1968).
13. See HELENA H.M. CHAN, ASEAN LAW ASS'N, AN INTRODUCTION TO THE SINGAPORE LEGAL SYSTEM 107-29 (1986).
14. See HAJI N.A.N. MUHAMMAD, THE LEGAL SYSTEM OF THE SOMALI DEMOCRATIC REPUBLIC 56 (1972).
15. See generally THE PENAL CODE OF THAILAND AND ITS AMENDMENT (Laung D.S. Patived trans., 1960).
16. WILLIAM L. BURDICK, THE PRINCIPLES OF ROMAN LAW AND THEIR RELATION TO MODERN LAW 386-409, 676-719 (Wm. W. Gaunt & Sons, Inc. 1989) (1938).
17. See, e.g., Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1195 (1985) ("Much of this market bypassing cannot be deterred by tort law - that is, by privately enforced damage suits. The optimal damages hat would be required for deterrence would so frequently exceed the offender's ability to pay that public enforcement and nonmonetary sanctions such as imprisonment are required.").
18. The authority to incarcerate persons is not limited to the criminal law. Under the civil law, the state has the authority to commit persons civilly who are mentally ill or who have contagious diseases. E.g., Paul H. Robinson, Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders, 83 J. CRIM. L. & CRIMINOLOGY 693, 700 n.23 (1993) (listing state civil commitment statutes); id. at 712 n.57 (listing state statutes for the detention of persons with communicable diseases). At the same time, a significant percentage of criminal offenders are not imprisoned, but rather merely receive sanctions, such as fines or probation restrictions, that could have been imposed by civil law as damages, fines, or restraining orders. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1992, at 516-17, tbl. 5.37 (1993) (Defendants Sentenced in U.S. District Courts) (showing that for the year ending June 30, 1991, 37.7% of sentenced federal defendants were not incarcerated; 29.5% received probation, 8.1% were only fined, and 0.1% received punishment classified as "other"); id. at 529, tbl. 5.52 (Felony Sentences Imposed by State Courts) (showing that in 1990, 29% of felons sentenced in state court received punishments other than incarceration). The one sanction civil law cannot impose is the death penalty, but the criminal system has always included many more offenses for which the death penalty was not available than those for which it was.
19. The authority to incarcerate persons is not limited to the criminal law. Under the civil law, the state has the authority to commit persons civilly who are mentally ill or who have contagious diseases. E.g., Paul H. Robinson, Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders, 83 J. CRIM. L. & CRIMINOLOGY 693, 700 n.23 (1993) (listing state civil commitment statutes); id. at 712 n.57 (listing state statutes for the detention of persons with communicable diseases). At the same time, a significant percentage of criminal offenders are not imprisoned, but rather merely receive sanctions, such as fines or probation restrictions, that could have been imposed by civil law as damages, fines, or restraining orders. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1992, at 516-17, tbl. 5.37 (1993) (Defendants Sentenced in U.S. District Courts) (showing that for the year ending June 30, 1991, 37.7% of sentenced federal defendants were not incarcerated; 29.5% received probation, 8.1% were only fined, and 0.1% received punishment classified as "other"); id. at 529, tbl. 5.52 (Felony Sentences Imposed by State Courts) (showing that in 1990, 29% of felons sentenced in state court received punishments other than incarceration). The one sanction civil law cannot impose is the death penalty, but the criminal system has always included many more offenses for which the death penalty was not available than those for which it was.
20. See, e.g., Earl C. Dudley, Jr., Getting Beyond the Civil-Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 VA. L. REV. 1025, 1065 (1993) (noting the constitutional requirement for greater procedural safeguards in criminal proceedings and suggesting that the stigmatizing effect unique to criminal sanctions necessitates these greater safeguards).
21. For example, Albania, China, Cuba, North Korea, Burma, and Singapore have all been criticized for failure to follow international standards for fair criminal procedure and for arbitrary and abusive police practices. E.g., AMNESTY INT'L, THE 1993 REPORT ON HUMAN RIGHTS AROUND THE WORLD 49 (Albania), 93-97 (China), 108-11 (Cuba), 180-81 (North Korea), 215-18 (Burma), 257-58 (Singapore) (1993). Yet each country maintains a separate and distinct criminal law. See, e.g., ASIA WATCH & THE WOMEN'S RIGHTS PROJECT, A MODERN FORM OF SLAVERY: TRAFFICKING OF BURMESE WOMEN AND GIRLS INTO BROTHELS IN THAILAND 28 (1993) (Burma); CHAN, supra note 11 (Singapore); DEBRA EVENSON, REVOLUTION IN THE BALANCE: LAW AND SOCIETY IN CONTEMPORARY CUBA 150-53 (1994) (Cuba); FEDERAL RESEARCH DIVISION, LIBRARY OF CONGRESS, NORTH KOREA: A COUNTRY STUDY 179-80, 267-75 (Andrea M. Savada, ed., 4th ed. 1994) (North Korea); MEIJER, supra note 1 (China); MINNESOTA LAWYERS INT'L HUMAN RIGHTS COMMITTEE, HUMAN RIGHTS IN THE PEOPLE'S SOCIALIST REPUBLIC OF ALBANIA 41-48 (1990) (Albania).
22. For example, Albania, China, Cuba, North Korea, Burma, and Singapore have all been criticized for failure to follow international standards for fair criminal procedure and for arbitrary and abusive police practices. E.g., AMNESTY INT'L, THE 1993 REPORT ON HUMAN RIGHTS AROUND THE WORLD 49 (Albania), 93-97 (China), 108-11 (Cuba), 180-81 (North Korea), 215-18 (Burma), 257-58 (Singapore) (1993). Yet each country maintains a separate and distinct criminal law. See, e.g., ASIA WATCH & THE WOMEN'S RIGHTS PROJECT, A MODERN FORM OF SLAVERY: TRAFFICKING OF BURMESE WOMEN AND GIRLS INTO BROTHELS IN THAILAND 28 (1993) (Burma); CHAN, supra note 11 (Singapore); DEBRA EVENSON, REVOLUTION IN THE BALANCE: LAW AND SOCIETY IN CONTEMPORARY CUBA 150-53 (1994) (Cuba); FEDERAL RESEARCH DIVISION, LIBRARY OF CONGRESS, NORTH KOREA: A COUNTRY STUDY 179-80, 267-75 (Andrea M. Savada, ed., 4th ed. 1994) (North Korea); MEIJER, supra note 1 (China); MINNESOTA LAWYERS INT'L HUMAN RIGHTS COMMITTEE, HUMAN RIGHTS IN THE PEOPLE'S SOCIALIST REPUBLIC OF ALBANIA 41-48 (1990) (Albania).
23. For example, Albania, China, Cuba, North Korea, Burma, and Singapore have all been criticized for failure to follow international standards for fair criminal procedure and for arbitrary and abusive police practices. E.g., AMNESTY INT'L, THE 1993 REPORT ON HUMAN RIGHTS AROUND THE WORLD 49 (Albania), 93-97 (China), 108-11 (Cuba), 180-81 (North Korea), 215-18 (Burma), 257-58 (Singapore) (1993). Yet each country maintains a separate and distinct criminal law. See, e.g., ASIA WATCH & THE WOMEN'S RIGHTS PROJECT, A MODERN FORM OF SLAVERY: TRAFFICKING OF BURMESE WOMEN AND GIRLS INTO BROTHELS IN THAILAND 28 (1993) (Burma); CHAN, supra note 11 (Singapore); DEBRA EVENSON, REVOLUTION IN THE BALANCE: LAW AND SOCIETY IN CONTEMPORARY CUBA 150-53 (1994) (Cuba); FEDERAL RESEARCH DIVISION, LIBRARY OF CONGRESS, NORTH KOREA: A COUNTRY STUDY 179-80, 267-75 (Andrea M. Savada, ed., 4th ed. 1994) (North Korea); MEIJER, supra note 1 (China); MINNESOTA LAWYERS INT'L HUMAN RIGHTS COMMITTEE, HUMAN RIGHTS IN THE PEOPLE'S SOCIALIST REPUBLIC OF ALBANIA 41-48 (1990) (Albania).
24. For example, Albania, China, Cuba, North Korea, Burma, and Singapore have all been criticized for failure to follow international standards for fair criminal procedure and for arbitrary and abusive police practices. E.g., AMNESTY INT'L, THE 1993 REPORT ON HUMAN RIGHTS AROUND THE WORLD 49 (Albania), 93-97 (China), 108-11 (Cuba), 180-81 (North Korea), 215-18 (Burma), 257-58 (Singapore) (1993). Yet each country maintains a separate and distinct criminal law. See, e.g., ASIA WATCH & THE WOMEN'S RIGHTS PROJECT, A MODERN FORM OF SLAVERY: TRAFFICKING OF BURMESE WOMEN AND GIRLS INTO BROTHELS IN THAILAND 28 (1993) (Burma); CHAN, supra note 11 (Singapore); DEBRA EVENSON, REVOLUTION IN THE BALANCE: LAW AND SOCIETY IN CONTEMPORARY CUBA 150-53 (1994) (Cuba); FEDERAL RESEARCH DIVISION, LIBRARY OF CONGRESS, NORTH KOREA: A COUNTRY STUDY 179-80, 267-75 (Andrea M. Savada, ed., 4th ed. 1994) (North Korea); MEIJER, supra note 1 (China); MINNESOTA LAWYERS INT'L HUMAN RIGHTS COMMITTEE, HUMAN RIGHTS IN THE PEOPLE'S SOCIALIST REPUBLIC OF ALBANIA 41-48 (1990) (Albania).
25. For example, Albania, China, Cuba, North Korea, Burma, and Singapore have all been criticized for failure to follow international standards for fair criminal procedure and for arbitrary and abusive police practices. E.g., AMNESTY INT'L, THE 1993 REPORT ON HUMAN RIGHTS AROUND THE WORLD 49 (Albania), 93-97 (China), 108-11 (Cuba), 180-81 (North Korea), 215-18 (Burma), 257-58 (Singapore) (1993). Yet each country maintains a separate and distinct criminal law. See, e.g., ASIA WATCH & THE WOMEN'S RIGHTS PROJECT, A MODERN FORM OF SLAVERY: TRAFFICKING OF BURMESE WOMEN AND GIRLS INTO BROTHELS IN THAILAND 28 (1993) (Burma); CHAN, supra note 11 (Singapore); DEBRA EVENSON, REVOLUTION IN THE BALANCE: LAW AND SOCIETY IN CONTEMPORARY CUBA 150-53 (1994) (Cuba); FEDERAL RESEARCH DIVISION, LIBRARY OF CONGRESS, NORTH KOREA: A COUNTRY STUDY 179-80, 267-75 (Andrea M. Savada, ed., 4th ed. 1994) (North Korea); MEIJER, supra note 1 (China); MINNESOTA LAWYERS INT'L HUMAN RIGHTS COMMITTEE, HUMAN RIGHTS IN THE PEOPLE'S SOCIALIST REPUBLIC OF ALBANIA 41-48 (1990) (Albania).
26. For example, Albania, China, Cuba, North Korea, Burma, and Singapore have all been criticized for failure to follow international standards for fair criminal procedure and for arbitrary and abusive police practices. E.g., AMNESTY INT'L, THE 1993 REPORT ON HUMAN RIGHTS AROUND THE WORLD 49 (Albania), 93-97 (China), 108-11 (Cuba), 180-81 (North Korea), 215-18 (Burma), 257-58 (Singapore) (1993). Yet each country maintains a separate and distinct criminal law. See, e.g., ASIA WATCH & THE WOMEN'S RIGHTS PROJECT, A MODERN FORM OF SLAVERY: TRAFFICKING OF BURMESE WOMEN AND GIRLS INTO BROTHELS IN THAILAND 28 (1993) (Burma); CHAN, supra note 11 (Singapore); DEBRA EVENSON, REVOLUTION IN THE BALANCE: LAW AND SOCIETY IN CONTEMPORARY CUBA 150-53 (1994) (Cuba); FEDERAL RESEARCH DIVISION, LIBRARY OF CONGRESS, NORTH KOREA: A COUNTRY STUDY 179-80, 267-75 (Andrea M. Savada, ed., 4th ed. 1994) (North Korea); MEIJER, supra note 1 (China); MINNESOTA LAWYERS INT'L HUMAN RIGHTS COMMITTEE, HUMAN RIGHTS IN THE PEOPLE'S SOCIALIST REPUBLIC OF ALBANIA 41-48 (1990) (Albania).
27. See John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 194 (1991) ("Characteristically, tort law prices, while criminal law prohibits."); Robert Cooter, Prices and Sanctions, 84 COLUM. L. REV. 1523, 1548-50 (1984) (suggesting that the explanation for the criminal-civil distinction is that the information requirements for pricing crime are prohibitive in relation to the information requirements for sanctioning crimes).
28. See John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 194 (1991) ("Characteristically, tort law prices, while criminal law prohibits."); Robert Cooter, Prices and Sanctions, 84 COLUM. L. REV. 1523, 1548-50 (1984) (suggesting that the explanation for the criminal-civil distinction is that the information requirements for pricing crime are prohibitive in relation to the information requirements for sanctioning crimes).
29. Coffee admirably acknowledges this weakness in his theory, stating that his claim "is not that tort law only prices and criminal law only prohibits, but that each has a dominant tendency that explains much of its institutional and doctrinal structure." Coffee, supra note 19, at 194 n.4. It is hard to see why this conceded weakness does not undo his theory, however. Coffee might argue that making crimes torts is useful because tort liability can add to the deterrent threat of criminal punishment. If that were the case, one would expect all crimes to be torts, which they are not. The prohibition-pricing distinction also does not explain the host of other differences between the two systems, as discussed below. See infra text accompanying notes 21-23.
30. In tort, consent ordinarily bars recovery. E.g., W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 18 (5th ed. 1984) ("Consent ordinarily bars recovery for intentional interferences with person or property."). On the other hand, consent is rarely a defense in criminal law. See, e.g., MODEL PENAL CODE § 2.11(1) (1985) (stating the general rule that consent is a defense if it negates an element of an offense or precludes the infliction of harm that a law sought to prevent).
31. In tort, consent ordinarily bars recovery. E.g., W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 18 (5th ed. 1984) ("Consent ordinarily bars recovery for intentional interferences with person or property."). On the other hand, consent is rarely a defense in criminal law. See, e.g., MODEL PENAL CODE § 2.11(1) (1985) (stating the general rule that consent is a defense if it negates an element of an offense or precludes the infliction of harm that a law sought to prevent).
32. Criminal law recognizes a defense if the harm or evil was "too trivial to warrant the condemnation of conviction." See MODEL PENAL CODE § 2.12(2) (1985) (setting forth the rule regarding de minimis infractions). Conversely, tort law imposes liability independent of the amount of harm caused; a minor harm from a violation will simply result in minor damages. See KEETON ET AL., supra note 21, § 85, at 608 (discussing the fault principle, under which intended harms and unintended harms involving undue risk are compensable, no matter how small the damages).
33. Criminal law recognizes a defense if the harm or evil was "too trivial to warrant the condemnation of conviction." See MODEL PENAL CODE § 2.12(2) (1985) (setting forth the rule regarding de minimis infractions). Conversely, tort law imposes liability independent of the amount of harm caused; a minor harm from a violation will simply result in minor damages. See KEETON ET AL., supra note 21, § 85, at 608 (discussing the fault principle, under which intended harms and unintended harms involving undue risk are compensable, no matter how small the damages).
34. Generally, tortfeasors are permitted to pay damages through insurance while convicted criminals are not. See, e.g., KEETON ET AL., supra note 21, § 82, at 586 (describing the interaction of liability insurance and the criminal law); SAMUEL WILLISTON, 7 A TREATISE ON THE LAW OF CONTRACTS § 901, at 60 (Walter H.E. Jaeger ed., 3d ed. 1963) ("Almost all attempted [criminal liability] insurance has been declared illegal as opposed to public policy.").
35. Generally, tortfeasors are permitted to pay damages through insurance while convicted criminals are not. See, e.g., KEETON ET AL., supra note 21, § 82, at 586 (describing the interaction of liability insurance and the criminal law); SAMUEL WILLISTON, 7 A TREATISE ON THE LAW OF CONTRACTS § 901, at 60 (Walter H.E. Jaeger ed., 3d ed. 1963) ("Almost all attempted [criminal liability] insurance has been declared illegal as opposed to public policy.").
36. See, e.g., Posner, supra note 15, at 1195 (explaining that criminal law doctrines promote economic efficiency, just as tort law does); Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232, 1235 (1985) ("Whether . . . a party will . . . commit an act . . . depends on his perception of the possibility that he will suffer a sanction . . . . A party will commit an act [only] if . . . the expected sanction [is] less than the expected private benefits. If he decides not to commit an act, he [has been] deterred.").
37. See, e.g., Posner, supra note 15, at 1195 (explaining that criminal law doctrines promote economic efficiency, just as tort law does); Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232, 1235 (1985) ("Whether . . . a party will . . . commit an act . . . depends on his perception of the possibility that he will suffer a sanction . . . . A party will commit an act [only] if . . . the expected sanction [is] less than the expected private benefits. If he decides not to commit an act, he [has been] deterred.").
38. Some writers do not dispute that the current criminal-civil distinction reflects the special place of criminal law as having a focus on blameworthiness and a punishment function, but argue for the virtues of shifting to the use of a different distinction. See, e.g., Randy E. Barnett, Restitution: A New Paradigm of Criminal Justice, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 349 (Randy E. Barnett & John Hagel III eds., 1977) (acknowledging the punishment focus of criminal law, but arguing for a "new paradigm" of criminal law organized around a restitution principle).
39. WEBSTER'S SEVENTH NEW COLLEGIATE DICTIONARY 197 (1967).
40. Id. at 693 (emphasis added).
41. MODEL PENAL CODE § 2.12(2) (1985). Note that even the highly utilitarian drafters of the Code believe that "condemnation" is implicit in "conviction."
42. See NIGEL G. FOSTER, GERMAN LAW & LEGAL SYSTEM 2 (1993).
43. This is the role of the Tatbestand in the German criminal system. For a general discussion of the German analytic scheme and the role of the Tatbestand within it, see Wolfgang Naucke, An Insider's Perspective on the Significance of the German criminal Theory's General System for Analyzing Criminal Acts, 1984 B.Y.U. L. REV. 305; see also GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 7.6.1 (1978) (stating that prohibitory norms shape the contours of the definition of criminal offenses).
44. This is the role of the Tatbestand in the German criminal system. For a general discussion of the German analytic scheme and the role of the Tatbestand within it, see Wolfgang Naucke, An Insider's Perspective on the Significance of the German criminal Theory's General System for Analyzing Criminal Acts, 1984 B.Y.U. L. REV. 305; see also GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 7.6.1 (1978) (stating that prohibitory norms shape the contours of the definition of criminal offenses).
45. Consent will vitiate the violation of a societal norm only if that norm is expressly defined in terms of lack of consent. This is the case for several offenses against the person, such as rape - only intercourse without consent is rape - and for some offenses against property - only taking without consent is theft. See MODEL PENAL CODE § 213.1(1) (1985) (Rape); id. art. 23 (Theft and Related Offenses). But it is rarely the case for other kinds of criminal offenses - consensual gambling and consensual bribery - and not the case for even many or most criminal offenses committed against the person or property - consensual homicide, arson, and incest. See ILL. ANN. STAT. ch. 720, para. 5/28-1 (Smith-Hurd 1993) (Gambling); MODEL PENAL CODE § 240.1 (1985) (Bribery in Official and Political Matters); id. § 210.1 (Criminal Homicide); id. § 220.1(1) (Arson); id. § 230.2 (Incest).
46. Consent will vitiate the violation of a societal norm only if that norm is expressly defined in terms of lack of consent. This is the case for several offenses against the person, such as rape - only intercourse without consent is rape - and for some offenses against property - only taking without consent is theft. See MODEL PENAL CODE § 213.1(1) (1985) (Rape); id. art. 23 (Theft and Related Offenses). But it is rarely the case for other kinds of criminal offenses - consensual gambling and consensual bribery - and not the case for even many or most criminal offenses committed against the person or property - consensual homicide, arson, and incest. See ILL. ANN. STAT. ch. 720, para. 5/28-1 (Smith-Hurd 1993) (Gambling); MODEL PENAL CODE § 240.1 (1985) (Bribery in Official and Political Matters); id. § 210.1 (Criminal Homicide); id. § 220.1(1) (Arson); id. § 230.2 (Incest).
47. Consent will vitiate the violation of a societal norm only if that norm is expressly defined in terms of lack of consent. This is the case for several offenses against the person, such as rape - only intercourse without consent is rape - and for some offenses against property - only taking without consent is theft. See MODEL PENAL CODE § 213.1(1) (1985) (Rape); id. art. 23 (Theft and Related Offenses). But it is rarely the case for other kinds of criminal offenses - consensual gambling and consensual bribery - and not the case for even many or most criminal offenses committed against the person or property - consensual homicide, arson, and incest. See ILL. ANN. STAT. ch. 720, para. 5/28-1 (Smith-Hurd 1993) (Gambling); MODEL PENAL CODE § 240.1 (1985) (Bribery in Official and Political Matters); id. § 210.1 (Criminal Homicide); id. § 220.1(1) (Arson); id. § 230.2 (Incest).
48. The most readable full account of this and the reasons for it is found in JAMES Q. WILSON, THE MORAL SENSE (1993).
49. I refer here only to the objective form of justification. The subjective form, what I would call mistaken justification, sends no such message. It is, in part, the important difference between these two messages that leads me to argue for an objective formulation of justification defenses, with a separate excuse defense for mistaken justification. Paul H. Robinson, Competing Theories of Justification: Deeds vs. Reasons, in CURRENT PROBLEMS OF CRIMINAL THEORY (A.T.H. Smith & A. Simester eds., 1996).
50. See Robinson, supra note 16, at 709 (noting the indeterminate length of civil commitment due to the system of periodic review of a detainee's dangerousness).
51. This is not true of all utilitarians, of course. For a brief discussion of the role of intuitionism in utilitarian theory, see Louis M. Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 YALE L.J. 315, 322 n.14 (1984).
52. I don't want to take too far the claim that economists are just like other people. I note for example that in an experiment designed to test whether students would contribute to a public good, such as a community stereo for a dormitory, the one group of students most likely to free-ride was graduate students in economics. See Gerald Marwell & Ruth E. Ames, Economists Free Ride, Does Anyone Else?, 15 J. PUB. ECON. 295, 306-07 (1981).
53. I thought it interesting that at the Symposium at which this paper was presented, Richard Epstein railed at length against overregulation of our lives by both criminal and civil law, treating the two systems as essentially analogous sources of liability. Yet he reserved his greatest feeling of outrage for officials who, because his walkway violated a beachfront construction rule, "were treating me like a criminal!" For details of Professor Epstein's discussion of such regulations, see Richard Epstein, The Crime/ Tort Distinction: A Generation Later, 76 B.U. L. REV. 1, 5-7 (1996).
54. Punitive damages at civil law may well have been created for a different reason than to mimic criminal liability, and might properly be maintained for this different reason, even in a system that returned to a sharp criminal-civil distinction. Specifically one might speculate that in cases of intentional wrongdoing, which is where punitive damages typically are imposed, the harm of the violation to the victim is actually greater than when the tortfeasor negligently caused the harm. Note, for example, that the sting of discrimination often lies in its intentionality. The victim of the discrimination suffers more when the motive is clear than where the actions might be accidental. The introduction of punitive damages in cases of intentional torts may well have been out of recognition of this greater harm.
55. Coffee, supra note 19, at 215-21 (discussing these "public welfare offenses").
56. Id. at 216 (citing Thomas B. Leary, The Commission's New Option That Favors Judicial Discretion in Corporate Sentencing, 3 FED. SENTENCING REP. 142, 144 n.10 (1990)). Coffee fails to include in his list of criminal-civil muddlings, however, one of his own special interests: the modern invention and increasing use of criminal liability for legal fictions, such as corporations. Corporate liability makes perfect sense when the issue is allocation of a loss suffered by one of the parties. But legal fictions can neither feel nor deserve moral condemnation; only people can.
57. See Paul H. Robinson & John M. Darley, The Utility of Desert (1996) (unpublished manuscript, on file with author).
58. For a fuller account of this argument and the social science data in support of it, see id.
59. See id.
60. See id.