Mediating rules in criminal law

Virginia Law Review

Volumn 93, Issue 5, 2007, Pages 1197-1258

  Bierschbach, Richard A ^a   Stein, Alex ^a,b  

^a YESHIVA UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 35348974548     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (449)

1. See, e.g., Joshua Dressier, Cases and Materials on Criminal Law 32 (3d ed. 2003) ("The dominant approaches to justification [of punishment] are retributive and utilitarian." (quoting Kent Greenawalt, Punishment, in 3 Encyclopedia of Crime and Justice 1282 (Joshua Dressler ed., 2d ed. 2002)));
2. Paul H. Robinson, Criminal Law: Case Studies & Controversies 83 (2005) ("Traditionally, two sorts of justifications for imposing punishment are given: utilitarian and retributivist.").
3. See, e.g., Fed. R. Evid. 102 (setting forth the purpose of the evidence rules as "securing] fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined");
4. Funk v. United States, 290 U.S. 371, 381 (1933) (stating that "[t]he fundamental basis upon which all rules of evidence must rest-if they are to rest upon reason-is their adaptation to the successful development of the truth");
5. Graham C. Lilly, Principles of Evidence 1 (4th ed. 2006) (describing evidence rules as aiming primarily to secure the quality of information for the jury and minimize errors);
6. Margaret A. Berger, Laboratory Error Seen Through the Lens of Science and Policy, 30 U.C. Davis L. Rev. 1081, 1088 (1997) (observing that the goal of evidentiary rules is to minimize and expose errors in fact-finding).
7. See infra notes 182-89 and accompanying text.
8. See infra Section I.B.
9. See infra Section I.A.
10. See infra notes 62-83 and accompanying text.
11. Throughout this Article, we use the term "rules" in its general sense, as synonymous with "laws," not in its more narrow, technical sense as denoting a certain type of law (for example, a "rule" as opposed to a "standard").
12. See, e.g., Eric L. Muller, The Virtue of Mercy in Criminal Sentencing, 24 Seton Hall L. Rev. 288, 299 (1993) ("[A] retributivist's primary concern is that a criminal sentence accurately reflect a criminal's just deserts.").
13. For particularly useful surveys and critical analyses of the different retributivist theories, see Louis Kaplow & Steven Shavell, Fairness Versus Welfare 294-317 (2002);
14. Michael Moore, Placing Blame: A General Theory of the Criminal Law 104-88 (1997); Retributivism and Its Critics (Wesley Cragg ed., 1992).
15. Michael S. Moore, The Moral Worth of Retribution, in Punishment and Rehabilitation 94 (Jeffrie G. Murphy ed., 1995);
16. see Moore, supra note 8, at 153-54 (observing that, under retributivism, desert is both a necessary and a sufficient condition of just punishment);
17. Stephen P. Garvey, Is It Wrong to Commute Death Row? Retribution, Atonement, and Mercy, 82 N.C. L. Rev. 1319, 1324 (2004) ("Retributive justice obligates the state to punish an offender because and to the extent, but only to the extent, he deserves to be punished.").
18. See, e.g., Darryl K. Brown, Third-Party Interests in Criminal Law, 80 Tex. L. Rev. 1383, 1408 (2002) ("Retributivism limits attention to an offender's mental state, conduct, and the harm he caused ....");
19. Dan Markel, Against Mercy, 88 Minn. L. Rev. 1421, 1445 (2004) (noting that "[r]etribution is often characterized as being concerned with the offender's past wrongdoing" and that retributivism generally holds that punishment "should be commensurate to the seriousness of the wrong and [the offender's] blameworthiness in committing it"). Some varieties of retributivism also focus more explicitly on the offender's character.
20. See, e.g., Jeffrie G. Murphy, Repentance, Punishment, and Mercy, in Repentance: A Comparative Perspective 143, 149 (Amitai Etzioni & David E. Carney eds., 1997) (describing a conception of character retributivism).
21. See Douglas A. Berman, Distinguishing Offense Conduct and Offender Characteristics in Modern Sentencing Reforms, 58 Stan. L. Rev. 277, 289 (2005) (summarizing retributivist theories of punishment as typically contending that "both offense conduct and offender characteristics should play a central role in meting out punishment based on an offender's culpability").
22. See, e.g., Immanuel Kant, The Metaphysical Elements of Justice *333 (famously arguing for the lex talionis principle under which the criminal should suffer the same harm as he inflicted on the victim);
23. Jeremy Waldron, Lex Talionis, 34 Ariz. L. Rev. 25 (1992) (explaining the lex talionis principle as a normative aspiration that imposes the requirement of proportionality in punishment).
24. Kant favored the lex talionis or "eye-for-an-eye" approach, see Kant, supra note 12, at *363, but even he did not produce workable precepts for determining the correct punishment. Most retributivists reject lex talionis.
25. See Kaplow & Shavell, supra note 8, at 307 (noting the "many retributivists who do not endorse lex talionis");
26. Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 Va. L. Rev. 677, 701 n.112 (2005) (noting retributivist critics of lex talionis).
27. H.L.A. Hart has called the notion of proportionality "the most perplexing feature" of retributivism. H.L.A. Hart, Postscript: Responsibility and Retribution, in Punishment and Responsibility: Essays in the Philosophy of Law 210, 233 (1968).
28. See, e.g., Michael Tonry, Intermediate Sanctions in Sentencing Guidelines, 23 Crime & Just. 199, 206 (1998) ("Proportionality ... require[s] that punishment severity be scaled to the seriousness of crimes, which means that... offenders convicted of comparably serious crimes must receive comparably severe punishments.");
29. Andrew von Hirsch, Proportionality in the Philosophy of Punishment, 16 Crime & Just. 55, 5598 (1992) (providing a detailed account of a conception of proportionality that ranks crimes ordinally-that is, relative to each other-but noting that any cardinal ranking of absolute severity is not possible);
30. Waldron, supra note 12, at 38-49 (arguing that retributivism leaves room for a range of punishments for any given crime).
31. See, e.g., George P. Fletcher, Rethinking Criminal Law 415 (1978) ("[T]he principle of retribution holds that punishment is just regardless of its consequences. Of course, desirable consequences may follow from punishment, but these incidental benefits do not enter into a retributive rationale.");
32. Kant, supra note 12, at *331 ("Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime . . . .");
33. Waldron, supra note 12, at 29-30 (discussing the nonconsequentialist nature of retributive punishment).
34. See Fletcher, supra note 15, at 415 ("What makes punishment just, regardless of the social good that might follow, is that it is a fitting social response to the commission of the crime.");
35. Douglas Husak, The Criminal Law as Last Resort, 24 Oxford J. Legal Stud. 207, 218-19 (2004) (describing proportionality as implementing a "principle of rank ordering" under which less serious offenses should not be punished with greater severity than more serious ones, "even if deviating] from this principle [would] prove[] effective in reducing crime").
36. Despite the extensive literature on retributivism, very little has been written on its implications for the design of procedural and evidentiary rules. See, e.g., Moore, supra note 8, at 91, 154 (describing retributivism as an abstract moral duty to set up institutions that achieve just punishment, without discussing the problems of uncertainty, scarce resources, and risks of error);
37. Russell L. Christopher, The Prosecutor's Dilemma: Bargains and Punishments, 72 Fordham L. Rev. 93, 165-66 (2003) (criticizing retributivism for failing to offer guidance for making prosecutorial choices under resource constraints);
38. Michael T. Cahill, Real-World Retributivism 2 (Aug. 2, 2006) (unpublished manuscript, on file with authors) (noting that "[r]etributivism... speaks only to the content of criminal-law rules, and not to their implementation" ).
39. But see Paul H. Robinson & Michael T. Cahill, Law Without Justice 53-71 (2006) (reviewing and briefly analyzing the relationship of the just deserts standard to procedural and evidentiary rules arguably designed to enhance reliability);
40. Russell L. Christopher, Deterring Retributivism: The Injustice of "Just" Punishment, 96 Nw. U. L. Rev. 843, 865-76, 910-15 (2002) (discussing different varieties of retributivism and their relationships to standards of proof in criminal cases).
41. See Kaplow & Shavell, supra note 8, at 258 (explaining that fairness-based notions, such as retributivism, are ordinarily understood as favoring accuracy in the choice of procedural and evidentiary rules);
42. Moore, supra note 8, at 91 (underscoring that, for retributivism, what matters is actual punishment in accordance with the maxim of "just deserts");
43. Dan Markel, State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty, 40 Harv. C.R.-C.L. L. Rev. 407, 463 (2005) ("[T]he concern for accuracy in distribution of punishment is fundamentally a retributivist concern ....").
44. See, e.g., Richard A. Posner, Economic Analysis of Law 618 n.2 (6th ed. 2003) (observing that "[t]rading off [false positives] and [false negatives] is a pervasive feature of evidence law");
45. Alex Stein, Foundations of Evidence Law 172-78 (2005) (discussing this tradeoff in the context of criminal trials).
46. See Stein, supra note 19.
47. See In re Winship, 397 U.S. 358 (1970) (holding that the Constitution's Due Process Clause requires proof of guilt in criminal cases "beyond a reasonable doubt");
48. Victor v. Nebraska, 511 U.S. 1, 19-20 (1994) (reviewing reasonable doubt standard).
49. See Posner, supra note 19, at 618;
50. Stein, supra note 19, at 143-53, 172-78.
51. See Moore, supra note 8, at 154 ("The desert of offenders certainly gives [state] officials permission to punish offenders. . . .But retributivism goes further. As a theory of a kind of justice, it obligates us to seek retribution through the punishment of the guilty.");
52. Stephen P. Garvey, "As the Gentle Rain From Heaven": Mercy in Capital Sentencing, 81 Cornell L. Rev. 989, 1006 n.63 (1996) ("A hard retributivist... would rate the injustice of a false-negative on a par with the injustice of a falsepositive.");
53. Alan Wertheimer, Punishing the Innocent-Unintentionally, 20 Inquiry 45, 61 (1977) (stating that retributivism considers erroneous acquittals as well as erroneous convictions instances of injustice);
54. supra note 9 and accompanying text. Which of these two injustices is greater than the other is an issue that retributivism does not address. See Cahill, supra note 17, at 3-5.
55. See supra note 18 and accompanying text.
56. See Cahill, supra note 17, at 2 (observing that retributivism's "principled moral rules ... offer no obvious guidance about what priorities to set or what tradeoffs or compromises are acceptable... in the real world, with its inevitable resource constraints and other limitations"). Some retributivists, we acknowledge, might express a strong preference one way or the other. For example, a strong negative or "limiting" retributivist might believe that it is better for the state to acquit many factually guilty defendants than to convict even one factually innocent defendant.
57. See, e.g., Garvey, supra note 23, at 1005-06. A strong positive retributivist, by contrast, might take the view that the moral obligation to convict and punish as many factually guilty defendants as possible justifies a significant risk of convicting some factually innocent defendants.
58. See, e.g., Ernest van den Haag, The Ultimate Punishment: A Defense, 99 Harv. L. Rev. 1662 (1986). To sustain a "strong negative" or "strong positive" retributivist position, however, one needs some supplementary moral theory of how to measure instances of injustice against each other.
59. 18 U.S.C. §§1341, 1346 (2000);
60. see also 15 U.S.C. §§78j, 78ff (2000);
61. 17 C.F.R. § 240.10b-5 (2006) (prohibiting willfully "engaging] in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security").
62. See Samuel W. Buell, Novel Criminal Fraud, 81 N.Y.U. L. Rev. 1971, 1972-74, 1987-88 (2006).
63. See id. at 1997-2005 (discussing and identifying this effect in numerous cases in which courts have used the "badges of guilt" inference against defendants).
64. See United States v. Dial, 757 F.2d 163, 170 (7th Cir. 1985) (dismissing worries about a potentially overbroad application of mail and wire fraud statutes to the defendants on the ground that their "elaborate efforts at concealment provide powerful evidence of their own consciousness of wrongdoing");
65. Buell, supra note 27, at 1997-99 (laying out the "badges of guilt" doctrine and reviewing its origins).
66. See Posner, supra note 19, at 220 (stating that "the criminal sanction ought to be so contrived that the criminal is made worse off by committing the act");
67. Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413, 425 (1999) (reviewing basics of deterrence theory).
68. See, e.g., Posner, supra note 19, at 219-27.
69. See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 170 & n.1 (Clarendon Press 1907) (1789);
70. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169, 179-80 (1968). Modern theorists also increasingly focus on the degree to which deterrence can work at a deeper level to affect compliance by shaping social meaning and harnessing the power of social influence.
71. See, e.g., Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349, 351 (1997) (setting forth a "social influence conception of deterrence").
72. See, e.g., Robert Cooter & Thomas Ulen, Law and Economics 435-63 (3d ed. 2000).
73. See Frederick Schauer, Playing by the Rules 31-34 (1991) (discussing the overand under-inclusiveness of rules).
74. See generally Chris William Sanchirico, Detection Avoidance, 81 N.Y.U. L. Rev. 1331 (2006) (analyzing the relationship of legal sanctions to detection-avoidance efforts).
75. See Neal Kumar Katyal, Deterrence's Difficulty, 95 Mich. L. Rev. 2385, 2391-408 (1997) (describing and analyzing substitution effects in criminal law). Extremely harsh sanctions may also discourage prosecutors from charging certain crimes and discourage victimized communities from reporting them.
76. See Tracey L. Meares, Neal Kumar Katyal & Dan M. Kahan, Updating the Study of Punishment, 56 Stan. L. Rev. 1171, 1185-86, 1185 n.42 (2004);
77. see also Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. Rev. 453, 471-88 (1997) (observing that departure from moral norms erodes citizens' compliance with the law).
78. See, e.g., Cooter & Ulen, supra note 33, at 435-41;
79. Becker, supra note 32, at 17679.
80. See, e.g., N.Y. Penal Law §25.00(2) (McKinney 2004) ("When a defense declared by statute to be an 'affirmative defense' is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.").
81. At some point, of course, the penalty increase could become so great that it would offend retributive notions of proportionality. See supra text accompanying notes 1214. In that scenario, lowering the barriers to conviction would be the only viable option for satisfying deterrence objectives.
82. See supra notes 12-25 and accompanying text.
83. We have discussed the particulars of this crime in greater detail elsewhere. See Richard A. Bierschbach & Alex Stein, Overenforcement, 93 Geo. L.J. 1743, 1765-71 (2005).
84. See id. at 1770 & nn.124-25 (discussing this point).
85. See Mo. Ann. Stat. §575.040 (West 2003) (requiring that a person "knowingly testif[y] falsely" with "the purpose to deceive" the court);
86. Tenn. Code Ann. §39-16-702 (2006) (requiring an "intent to deceive");
87. Tex. Penal Code Ann. §37.02(a) (Vernon 2003) (requiring an "intent to deceive" and "knowledge of the statement's meaning").
88. See, e.g., Model Penal Code §241.1 (Proposed Official Draft 1962) ("A person is guilty of perjury... if in any official proceeding he makes a false statement under oath or equivalent affirmation ... when the statement is material and he does not believe it to be true.");
89. Jared S. Hosid, Perjury, 39 Am. Crim. L. Rev. 895 (2002) (analyzing this definition).
90. See, e.g., United States v. Williams, 874 F.2d 968, 980 (5th Cir. 1989);
91. United States v. Giarratano, 622 F.2d 153, 156 & n.7 (5th Cir. 1980);
92. United States v. Lewis, 876 F. Supp. 308, 312 (D. Mass. 1994);
93. Alan Heinrich, Note, Clinton's Little White Lies: The Materiality Requirement for Perjury in Civil Discovery, 32 Loy. L.A.L. Rev. 1303, 1311-16 (1999) (discussing courts' practice of interpreting perjury statutes in very broad terms).
94. See, e.g., United States v. Andrews, 370 F. Supp. 365, 367-68 (D. Conn. 1974) (rejecting argument that evasive and misleading, but technically true, statements cannot provide the basis for a perjury prosecution);
95. United States v. Crandall, 363 F. Supp. 648, 655 (W.D. Pa. 1973) (holding that a false statement, once made, subjects a witness to liability for perjury even if the witness later goes on to "resumfe] his role as a witness and substitutes] the truth for his previous falsehood");
96. Ostendorf v. State, 128 P. 143, 154 (Okla. Crim. App. 1912) (holding that willful suppression of part of the truth is equivalent to an affirmative statement of falsehood);
97. Flowers v. State, 163 P. 558, 559 (Okla. Crim. App. 1917) (same).
98. See Robert Cooter & Winand Emons, Truth-Bonding and Other Truth-Revealing Mechanisms for Courts, 17 Eur. J. Law & Econ. 307, 310 (2004).
99. See supra text accompanying notes 12-14 and note 39.
100. See Weiler v. United States, 323 U.S. 606, 608-09 (1945) (noting the history and prevalence of the corroboration rule);
101. United States v. Chaplin, 25 F.3d 1373, 1378 (7th Cir. 1994) (holding that "although criticized by some, the two-witness rule remains viable in perjury prosecutions").
102. See Weiler, 323 U.S. at 608 ("The touchstone is always credibility; the ultimate measure of testimonial worth is quality and not quantity.");
103. 7 John Henry Wigmore, Evidence in Trials at Common Law §2034, at 342-43 (James H. Chadbourn ed., rev. ed. 1978) (stating the general common law principle that a jury may convict the defendant upon testimony of a single witness).
104. See Stephen A. Saltzburg, Perjury and False Testimony: Should the Difference Matter So Much?, 68 Fordham L. Rev. 1537, 1577 (2000) (acknowledging, while criticizing, the law's tendency to penalize and provide remedies for clear perjury, as opposed to merely misleading testimony).
105. The two exceptions are William Stuntz and Stephanos Bibas. See, e.g., William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 6 (1997) (decrying the artificial separation between criminal procedure and substantive criminal law and exploring its consequences for the administration of criminal justice);
106. Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361, 1367 (2003) (examining the way in which a proceduralist approach to certain types of plea bargains undercuts the substantive values at which criminal law aims). Neither scholar, however, touches on the relationship between rules of criminal evidence and substantive criminal law theory that we discuss here.
107. We choose these examples because they represent some of the most salient and economical (for purposes of discussion) illustrations of our theory from the criminal law's general part. Additional examples from that part, as well as crime-specific examples, see, for example, supra notes 26-29, 41-51, and accompanying text, exist.
108. See, e.g., Wayne R. LaFave, Criminal Law §13.2, at 671 (4th ed. 2003) (laying out basic test for accomplice liability). Some ambiguity exists as to what kind of intent is sufficient for turning a person into an accomplice. Under the prevalent doctrine, awareness that the principal is committing the crime is enough, especially in relation to serious crimes; the accomplice need not always have the conscious objective of bringing the crime about.
109. See id. §13.2(d), at 678;
110. Backun v. United States, 112 F.2d 635, 637 (4th Cir. 1940).
111. Hicks v. United States, 150 U.S. 442, 446 (1893).
112. State v. Duran, 526 P.2d 188, 188 (N.M. Ct. App. 1974).
113. State v. Helmenstein, 163 N.W.2d 85, 89 (N.D. 1968);
114. see also, e.g., Wilcox v. Jeffery, (1951) 1 AU E.R. 464, 466 (K.B.) (holding that concertgoer's appearing in the audience was enough to establish his accomplice liability for playing an unauthorized concert);
115. Alexander v. State, 102 So. 597, 598 (Ala. Ct. App. 1925) (holding that wife's bringing husband his lunch was enough to establish her accomplice liability for operating an illegal still).
116. See 1 Charles E. Torcia, Wharton's Criminal Law §§34-35, at 201-03 (15th ed. 1993 & Supp. 2005) (noting that at common law, "[t]he principal and accessory were treated as equally guilty and subject to the same punishment" and that modern codifications of criminal codes have not changed this practice);
117. LaFave, supra note 54, § 13.6(a), at 716-17 (observing same except with respect to accessories after the fact). Cooperating accomplices, of course, stand to receive significant discounts at the discretion of sentencing judges and prosecutors and under sentencing guidelines, where applicable.
118. See infra note 83.
119. People v. Prettyman, 926 P.2d 1013, 1019 (Cal. 1996). See generally LaFave, supra note 54, §13.3(b), at 687 ("The established rule, as it is usually stated by courts and commentators, is that accomplice liability extends to acts of the principal... which were a 'natural and probable consequence' of the criminal scheme the accomplice encouraged or aided.") (citation omitted)).
120. See Torcia, supra note 58, §35, at 209-10. Nor does it make a difference that A might have hoped or affirmatively desired that P not commit any violent act in the course of the robbery, so long as A encouraged the robbery itself.
121. See, e.g., Morriss v. United States, 554 A.2d 784, 789 (D.C. 1989).
122. See Posner, supra note 19, at 231. Because it is difficult to determine in advance the potential benefit that any given accomplice might receive from the principal's success-will his cut be ten percent or fifty percent?-deterrence assumes the worst and sets the punishment equal to that of the principal.
123. See, e.g., Stephen J. Morse, Reason, Results, and Criminal Responsibility, 2004 U. Ill. L. Rev. 363, 399 (arguing, on just deserts grounds, that "accomplice liability should not be automatically equal to the perpetrator's," but rather "should be differentiated according to the individual mens rea of the accomplice and the perpetrator");
124. LaFave, supra note 54, §13.3(b), at 688 (making similar argument);
125. United States v. Andrews, 75 F.3d 552, 555 (9th Cir. 1996) (same). Absent cooperation or plea, an accomplice's sentence is usually close to that of the principal offender. People v. Shafou, 330 N.W.2d 647, 654 (Mich. 1982) ("Accomplices generally are punished as severely as the principal, on the premise that when a crime has been committed, those who aid in its commission should be punished like the principal.").
126. See, e.g., Schauer, supra note 34, at 32 (observing that the generalizations of most rules "encompass states of affairs that might in particular instances not produce the consequence representing the rule's justification").
127. Several states have recently adopted this approach, although they remain a small minority. See Ariz. Rev. Stat. Ann. §13-1004 (2001);
128. Ky. Rev. Stat. Ann. §506.080 (LexisNexis 1999);
129. N.Y. Penal Law §115.05 (McKinney 2004);
130. N.D. Cent. Code § 12.1-06-02 (1997).
131. The "barriers to conviction" terminology as applied to evidentiary rules is borrowed from Mirjan R. Damaška, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L. Rev. 506 (1973).
132. See U.S. Const. amend. V ("No person ... shall be compelled in any criminal case to be a witness against himself. . . ."); Escobedo v. Illinois, 378 U.S. 478, 491 (1964) (describing a defendant's "absolute constitutional right to remain silent" during interrogation by the police).
133. See Kastigar v. United States, 406 U.S. 441, 462 (1972) (explaining that use immunity must leave "the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege");
134. Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52, 79 (1964) (prohibiting federal government from utilizing state witness's prior compelled testimony in criminal proceedings against him);
135. see also John G. Douglass, Confronting the Reluctant Accomplice, 101 Colum. L. Rev. 1797, 1869-71 (2001) (exploring the conflict between an accomplice's privilege against self-incrimination and a principal's constitutional right to confront witnesses).
136. Such offers do not render the accomplice's testimony inadmissible. See, e.g., People v. Dillon, 327 N.E.2d 225, 233 (111. App. Ct. 1975);
137. People v. Berry, 269 N.W.2d 694, 695-96 (Mich. Ct. App. 1978);
138. Commonwealth v. Byrd, 417 A.2d 173, 177 (Pa. 1980).
139. See, e.g., Torcia, supra note 58, §38, at 238-39 ("At common law, a conviction of an accused could be based solely upon the testimony of an accomplice. However, as a result of statute, it is now commonly required that the accomplice's testimony be corroborated.");
140. id. at 239 n.12 (citing statutes and case law from two dozen states). The corroboration rule does not apply in federal courts.
141. See John C. O'Brien & Roger L. Goldman, Federal Criminal Trial Evidence 626 & n.43 (1989).
142. See Torcia, supra note 58, §38, at 238-39.
143. See, e.g., Douglass, supra note 67, at 1809-12 (underscoring the evidentiary importance to prosecutors of hearsay statements made by defendants' accomplices).
144. See Fed. R. Evid. 804(b)(3) ("A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.").
145. Williamson v. United States, 512 U.S. 594, 601 (1994).
146. See id. at 602.
147. See, e.g., People v. Lawley, 38 P.3d 461, 497 (Cal. 2002);
148. Bernal v. People, 44 P.3d 184, 199 (Colo. 2002);
149. Jolly v. United States, 704 A.2d 855, 863 n.12 (D.C. 1997);
150. State v. Wiley, 880 So. 2d 854, 869 (La. Ct. App. 2004);
151. Commonwealth v. Marrero, 800 N.E.2d 1048, 1051-52 (Mass. App. Ct. 2003);
152. State v. Jones, 556 N.W.2d 903, 908-09 (Minn. 1996);
153. State v. Gonzales, 989 P.2d 419, 421 (N.M. 1999);
154. Scott v. State, 165 S.W.3d 27, 46-47 (Tex. Crim. App. 2005);
155. State v. Roberts, 14 P.3d 713, 727 (Wash. 2000);
156. In re Ray, 489 S.E.2d 289, 297 (W. Va. 1997).
157. 541 U.S. 36, 68 (2004).
158. See Ohio v. Roberts, 448 U.S. 56, 66 (1980),
159. overruled in part by Crawford v. Washington, 541 U.S. 36 (2004). Out-of-court statements that do not fall into Crawford's "testimonial" category still must exhibit substantial indicia of reliability to be admitted. The accomplice also must be unavailable to testify as a witness.
160. See Lilly v. Virginia, 527 U.S. 116, 133-34 (1999);
161. see also Idaho v. Wright, 497 U.S. 805, 820-21 (1990) (holding that indicia of reliability must be internal to statement itself). Statements from accomplices usually fail the reliability test in light of the substantial incentives accomplices have to curry favor with police and prosecutors.
162. See Lilly, 527 U.S. at 137-39.
163. See Bruton v. United States, 391 U.S. 123, 127-37 (1968) (holding that the admission of nontestifying co-defendant's confession at his joint trial with defendant violated defendant's Due Process and Sixth Amendment rights).
164. See id. at 135-37 (explaining that a prophylactic rule eliminates any danger of the confession's potential spillover effect on the nonconfessing defendant).
165. See Judith L. Ritter, The X Files: Joint Trials, Redacted Confessions and Thirty Years of Sidestepping Bruton, 42 Vill. L. Rev. 855, 857 (1997) (observing that after Bruton, prosecutors' failure to try defendants separately will make it extremely difficult for them to use an accomplice's confession against his co-defendant in court).
166. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2470-71 (2004) ("Trials are much more time consuming than plea bargains, so prosecutors have incentives to negotiate deals instead of trying cases.... In addition to lightening their workloads, prosecutors want to ensure convictions.... Favorable win-loss statistics boost prosecutors' egos, their esteem, their praise by colleagues, and their prospects for promotion and career advancement.") (citations omitted);
167. Richard A. Posner, An Economic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477, 1505 (1999) (discussing similar factors).
168. The accomplice relationship is bi-directional: for the purposes of the evidentiary doctrines at issue here, courts treat each party as an accomplice of the other.
169. See Bibas, supra note 81, at 2490-91 ("For example, a prosecutor may decline to charge under a three-strikes law if the defendant provides information leading to the conviction of his co-conspirators.");
170. Neal Kumar Katyal, Conspiracy Theory, 112 Yale L.J. 1307, 1370 (2003) (noting that increasing the potential sanctions in cases of group criminality does not mean that such sanctions are actually imposed on cooperators, which "rarely happens");
171. Ian Weinstein, Regulating the Market for Snitches, 47 Buff. L. Rev. 563, 578 (1999) ("For many defendants, cooperation offers the only opportunity for significant sentence mitigation or escaping prison all together.").
172. See supra text accompanying notes 63-64.
173. In cases in which accomplices refuse to cooperate, it is in prosecutors' interests to pursue harsh sanctions despite the cost of doing so. Cf. Posner, supra note 81, at 1505 ("The government has enormous prosecutorial resources. It can allocate these across cases as it pleases, extracting guilty pleas by threatening to concentrate its resources against any defendant who refuses to plead and using the resources thus conserved to wallop the occasional defendant who does invoke his right to a trial.") (citation omitted).
174. See infra notes 90-98 and accompanying text.
175. See, e.g., Model Penal Code §5.03(1) (1962) ("A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime ... ; or (b) agrees to aid such other person or persons in the planning or commission of such crime ....").
176. See Yates v. United States, 354 U.S. 298, 334 (1957) ("The function of the overt act in a conspiracy prosecution is simply to manifest 'that the conspiracy is at work.'") (citation omitted);
177. LaFave, supra note 54, §12.2(b), at 626 & n.52 (reviewing the "overt act" requirement).
178. See, e.g., Model Penal Code §5.05;
179. LaFave, supra note 54, §12.4(d), at 662 (stating that many states follow the Model Penal Code in grading the conspiracy offense on the same level as the offense that is the object of the conspiracy).
180. See, e.g., Katyal, supra note 83, at 1369 ("In the same way that someone who drives drunk deserves punishment, the conspirator is culpable for the dangerous inchoate agreement.").
181. United States v. Recio, 537 U.S. 270, 274-75 (2003) (quoting Salinas v. United States, 522 U.S. 52, 65 (1997));
182. see also Krulewitch v. United States, 336 U.S. 440, 448-49 (1949) (Jackson, J., concurring) (acknowledging "the basic conspiracy principle" that "to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a lone wrongdoer");
183. United States v. Rabinowich, 238 U.S. 78, 88 (1915) ("For two or more to confederate and combine together to commit... a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.")
184. See, e.g., Katyal, supra note 83, at 1325 (pointing out that a conspiracy minimizes competition among members, builds a "framework of trust" that "reduce[s] the transaction costs," and enables the group to "hire specialists" and otherwise divide labor).
185. See id. at 1325;
186. see also Recio, 537 U.S. at 275 ("'[C]ombination in crime makes more likely the commission of [other] crimes [and] decreases the probability that the individuals involved will depart from their path of criminality.'"
187. (quoting Callanan v. United States, 364 U.S. 587, 593-94 (1961))).
188. Recio, 537 U.S. at 274-75 (quoting Salinas v. United States, 522 U.S. 52, 65 (1997)).
189. See supra notes 62-64 and accompanying text.
190. 328 U.S. 640 (1946).
191. See id. at 646-48;
192. United States v. Weidner, 437 F.3d 1023, 1044 (10th Cir. 2006);
193. United States v. McLee, 436 F.3d 751, 758 (7th Cir. 2006);
194. United States v. Silvestri, 409 F.3d 1311, 1335-37 (11th Cir. 2005);
195. United States v. Mothersill, 87 F.3d 1214, 1218-19 (11th Cir. 1996);
196. United States v. Alvarez, 755 F.2d 830, 847-51 (11th Cir. 1985).
197. As Katyal explains, by providing massive leverage to prosecutors, Pinkerton greatly increases incentives to cooperate, which in turn fractures trust and increases monitoring costs among conspirators. See Katyal, supra note 83, at 1372-75. It also increases the up-front price that potential members will demand to join the conspiracy, their incentives to reduce its scope, and the benefits they stand to gain by affirmatively withdrawing if the conspiracy becomes too broad.
198. See id.;
199. see also supra note 61 and accompanying text.
200. See, e.g., State ex rel. Woods v. Cohen, 844 P.2d 1147, 1151 (Ariz. 1992);
201. State v. Carrasco, 946 P.2d 1075, 1079 (N.M. 1997);
202. People v. McGee, 399 N.E.2d 1177, 1182 (N.Y. 1979);
203. State v. Stein, 972 P.2d 505, 509 (Wash. Ct. App. 1999).
204. See generally LaFave, supra note 54, §13.3(a), at 685-86 (noting that Pinkerton "never gained broad acceptance" at the state level and that most states "rejectfl the conclusion that complicity is coextensive with conspiracy").
205. See, e.g., United States v. Castaneda, 9 F.3d 761, 766 (9th Cir. 1993) ("[D]ue process constrains the application of Pinkerton where the relationship between the defendant and the substantive offense is slight.");
206. State v. Diaz, 679 A.2d 902, 911 (Conn. 1996) (observing that "a factual scenario may be envisioned in which the nexus between the defendant's role in the conspiracy and the illegal conduct of a coconspirator is so attenuated or remote, notwithstanding the fact that the latter's actions were a natural consequence of the unlawful agreement, that it would be unjust to hold the defendant responsible for the criminal conduct of his coconspirator").
207. Krulewitch v. United States, 336 U.S. 440, 449 (1949) (Jackson, J., concurring);
208. see also United States v. Lane, 474 U.S. 438, 475 (1986) (noting "deep abhorrence of the notion of 'guilt by association'" as a reason to carefully police misjoinder in conspiracy trials);
209. Addonizio v. United States, 405 U.S. 936, 938 (1972) (Douglas, J., dissenting) (acknowledging the "guilt by association" danger that a broad conspiracy doctrine presents).
210. See supra notes 54-57 and accompanying text; Krulewitch, 336 U.S. at 450 (Jackson, J., concurring) ("T]he conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.").
211. See Fed. R. Evid. 801(d)(2)(E) (rendering admissible as evidence of the truth of its contents any out-of-court statement "by a coconspirator of a party during the course and in furtherance of the conspiracy"). This exception applies in various forms in every state.
212. See 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence T-107-11 (Joseph M. McLaughlin ed., 2d ed. 2006).
213. See Fed. R. Evid. 801(d)(2)(B) (rendering admissible as evidence of the truth of its contents any out-of-court statement "of which the party has manifested an adoption or belief in its truth"). This exception also applies in various forms in every state.
214. See Weinstein & Berger, supra note 103, at T-107-11.
215. See cases cited infra notes 114-15.
216. See United States v. Olweiss, 138 F.2d 798, 800 (2d Cir. 1943) (Hand, J.) (explaining that admissibility of joint venturers' statements is "an incident of the general principle of agency" and does not require an indictment);
217. Bigelow v. State, 768 P.2d 558, 562 (Wyo. 1989) ("A conspiracy need not be charged for a joint venturer to be considered a co-conspirator.").
218. See Fed. R. Evid. 801(d)(2)(E);
219. People v. Caban, 833 N.E.2d 213, 217 (N.Y. 2005) ("A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule.") (internal quotations omitted);
220. see also Bourjaily v. United States, 483 U.S. 171, 183 (1987) (holding that the Confrontation Clause does not require the unavailability of the declarant or special indicia of reliability for the hearsay exception to apply to out-of-court statements of a co-conspirator).
221. See LaFave, supra note 54, §12.1(b)(3), at 618 (noting that, despite the "in furtherance" requirement, "any evidence somehow relating to the conspiracy [often] comes in" under the co-conspirator exception);
222. see, e.g., United States v. Davis, 457 F.3d 817, 825 (8th Cir. 2006) (invoking broad interpretation of "in furtherance" to uphold admission of testimony that a third party not named as a participant in the conspiracy had told the witness that he purchased cocaine from defendant). The exception does not extend to statements made after the conspiracy ended, successfully or unsuccessfully.
223. See Krulewitch v. United States, 336 U.S. 440, 442 (1949).
224. See King v. State, 189 S.W.3d 347, 360 (Tex. Crim. App. 2006) (reviewing examples).
225. See Bourjaily, 483 U.S. at 180 (holding that a court may consider a coconspirator's hearsay statement itself in determining whether a conspiracy exists for purposes of the application of the co-conspirator exception);
226. see also Caban, 833 N.E.2d at 217 (noting the importance of co-conspirator statements in establishing conspiracy). The out-of-court statement, however, cannot be the sole evidence supporting the conspiracy's existence.
227. See Fed. R. Evid. 801(d)(2)(E) (prescribing that the "contents of the statement shall be considered but are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered").
228. See Bourjaily, 483 U.S. at 175 (adopting preponderance standard for ruling a statement admissible under the co-conspirator exception to the hearsay rule);
229. People v. Salko, 391 N.E.2d 976, 981 (N.Y. 1979) (holding that the co-conspirator exception to the hearsay rule applies "only upon a showing that a prima facie case of conspiracy has been established").
230. See Bourjaily, 483 U.S. at 188-90.
231. See Fed. R. Evid. 801(d)(2)(B) (laying out exception).
232. See, e.g., People v. Williams, 676 N.Y.S.2d 49, 50 (N.Y. App. Div. 1998) (affirming admission of inculpatory out-of-court statements by a co-conspirator under adoptive admission exception because defendant failed to contradict those statements at the time they were made);
233. Paredes v. State, 129 S.W.3d 530, 534 (Tex. Crim. App. 2004) (holding that defendant adopted statements of co-conspirator when he "stood by and listened to [his] description of... murders and ... surrounding events without disrupting them");
234. Cantu v. State, 939 S.W.2d 627, 634-35 (Tex. Crim. App. 1997) (stating general rule that statements by a co-conspirator are admissible as another conspirator's adoptive admission when the latter manifests agreement with those statements through silence).
235. People v. Gomez, 801 N.Y.S.2d 294, 295 (N.Y. App. Div. 2005) (holding that defendant's failure to contradict co-conspirator's statement "that defendant was part of the drug-selling team" amounted to defendant's adoptive admission of that statement);
236. United States v. Henke, 222 F.3d 633, 642 (9th Cir. 2000) (affirming ruling that the defendant's response of "next question please" to a reporter's accusation that defendants were "cooking the books" was an adoptive admission on the ground that the natural response would be to address or deny the accusation);
237. People v. Ferrara, 92 N.E. 1054, 1059 (N.Y. 1910) (finding that defendant's shrugging of the shoulders in reaction to a stabbing accusation made by an accomplice at a jailhouse confrontation qualified as adoptive admission);
238. People v. Campney, 726 N.E.2d 468, 470-71 (N.Y. 1999) (ruling that circumstantial evidence alone satisfies the foundational standard for adoptive admissions and affirming the application of that principle in Ferrara).
239. See supra note 108 and accompanying text.
240. See, e.g., Davis v. Reid, 612 S.E.2d 112, 115-16 (Ga. Ct. App. 2005);
241. Hamilton v. Walker, 893 So. 2d 1002, 1007 (La. Ct. App. 2005);
242. Powers v. Coccia, 861 A.2d 466, 470 (R.I. 2004);
243. Maria L. Ontiveros, Adoptive Admissions and the Meaning of Silence: Continuing the Inquiry into Evidence Law and Issues of Race, Class, Gender, and Ethnicity, 28 Sw. U. L. Rev. 337, 340 (1999) (observing that the adoptive admission exception to the hearsay rule impacts "especially criminal defendants, more than most").
244. See supra note 115 and accompanying text.
245. See, e.g., State ex rel. Woods v. Cohen, 844 P.2d 1147, 1149-50 (Ariz. 1992) ("The fact that one can be criminally responsible for the crime of conspiracy without committing the planned substantive offenses does not mean that one is also criminally responsible for the substantive offenses without being either an accomplice or principal to those offenses.");
246. People v. McGee, 399 N.E.2d 1177, 1182 (N.Y. 1979) ("We ... decline to follow the rule adopted for Federal prosecutions in Pinkerton.... Accessorial conduct may not be equated with mere membership in a conspiracy and the State may not rely solely on the latter to prove guilt of the substantive offense.") (citation omitted);
247. id. (requiring proof of accomplice liability as the only basis for complicity).
248. See People v. Salko, 391 N.E.2d 976, 981-82 (N.Y. 1979) ("Th[e] [coconspirator] exception is not limited to permitting introduction of a conspirator's declaration to prove that a coconspirator committed the crime of conspiracy, but, rather, may be invoked to support introduction of such declaration to prove a coconspirator's commission of a substantive crime for which the conspiracy was formed.");
249. see also People v. Caban, 833 N.E.2d 213, 217 (N.Y. 2005).
250. See, e.g., Lilly v. Virginia, 527 U.S. 116, 137 (1999) ("We have held ... that any inherent unreliability that accompanies co-conspirator statements made during the course and in furtherance of the conspiracy is per se rebutted by the circumstances giving rise to the long history of admitting such statements.");
251. United States v. Sanchez-Berrios, 424 F.3d 65, 76 (1st Cir. 2005) (holding that "there is no [Confrontation Clause] problem when a statement falls within the coconspirator exception to the hearsay rule") (citation and internal quotation marks omitted);
252. State v. Baumgartner, 637 N.W.2d 14, 16 (N.D. 2001) ("[T]he term accomplice is not synonymous with coconspirator, and there is no rule requiring corroboration of a co-conspirator's testimony.");
253. see also State v. Lynn, 835 P.2d 251, 256 n.11 (Wash. App. 1992) ("Neither unavailability, reliability or corroboration need be shown for the admission of a coconspirator's statements."). Not all accomplices are also conspirators.
254. See, e.g., LaFave, supra note 54, §13.3(a), at 684. Minor accomplices who are not parties to the larger conspiratorial agreement can still claim the protections of the evidentiary rules that attach to the use of accomplice statements.
255. New York is one good example. See supra notes 119-20120. Salko, we note, was a companion case to McGee, in which the New York Court of Appeals rejected Pinkerton. Conversely, when the Supreme Court rejected what effectively would have been a further expansion of the co-conspirator exception in Krulewitch, the Court cited as one of its reasons Pinkerton's already existing "tendency ... to expand th[e] elastic offense [of conspiracy] and to facilitate its proof."
256. Krulewitch v. United States, 336 U.S. 440, 451 (1949) (Jackson, J., concurring);
257. see id. at 443-44.
258. See LaFave, supra note 54, §11.4(a), at 588;
259. see also State v. Spies, 672 N.W.2d 792, 797-98 (Iowa 2003) ("It is doubtless true that mere acts of preparation not proximately leading to the consummation of the intended crime will not suffice to establish an intent to commit it....");
260. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 617 (3d ed. 1982) ("The difference between [preparation and attempt] may not be 'wide' as a matter of fact. . . .But it is wide as a matter of law.")
261. See, e.g., Commonwealth v. Ortiz, 560 N.E.2d 698, 703 (Mass. 1990) (holding that riding in a car with a loaded gun in an unsuccessful search for intended victim was insufficient to support a conviction for attempted assault and battery, "even though the evidence would have warranted a finding that the defendant intended and prepared for an assault and battery" on his target);
262. People v. Coleman, 86 N.W.2d 281, 285 (Mich. 1957) (holding that "the purchase of a hunting rifle, secretly intended for the murder of the neighbor" is "merely an act of preparation");
263. United States v. Stephens, 12 F. 52, 55 (CCD. Or. 1882) (holding that "the purchase of a gun with a design to commit murder, or the purchase of poison with the same intent... are considered in the nature of preliminary preparations" which, "although co-existent with a guilty intent," do not rise to the level of an attempt). Under the "substantial step" test, the acts might possibly cross the line if they strongly corroborate evidence of a criminal purpose.
264. See Model Penal Code §5.01(2) (1962).
265. See Glanville Williams, Textbook of Criminal Law 405 (2d ed. 1983) (arguing that liability for attempts should attach to incomplete offenses that "distinctly betoken[] criminal mentality");
266. Herbert Morris, Punishment for Thoughts, 49 Monist 342, 360-61 (1965) (grounding liability for attempts on what can be described as the "accumulated culpability" rationale).
267. See Model Penal Code §5.01(1)(c) (1962) ("A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.");
268. LaFave, supra note 54, §11.4(e), at 594 ("The Model Penal Code's 'substantial step' language is to be found in the great majority of the attempt statutes in the modern recodifications.").
269. See, e.g., R v. Eagleton, (1855) 169 Eng. Rep. 826, 835-36 (Crim. App.) (laying out "last act" test);
270. King v. Barker [1924] N.Z.L.R. 865 (CA.) (laying out " unequivocality" test);
271. People v. Rizzo, 158 N.E. 888, 889 (N.Y. 1927) (laying out "physical proximity" test). For an excellent doctrinal and theoretical survey of the law of attempts,
272. see R.A. Duff, Criminal Attempts (1996).
273. See, e.g., Duff, supra note 127, at 124-25 (surveying retributivist approaches to attempt);
274. Joshua Dressler, Understanding Criminal Law §27.04[a][2], at 382 (3d ed. 2001) (same);
275. Arthur Ripstein, Equality, Responsibility and the Law 235-40 (1999);
276. Larry Alexander & Kimberly D. Kessler, Mens Rea and Inchoate Crimes, 87 J. Crim. L. & Criminology 1138, 1168-74 (1997);
277. Morris, supra note 125, at 360-61;
278. Williams, supra note 125, at 405;
279. Bruce Chapman, Agency and Contingency: The Case of Criminal Attempts, 38 U. Toronto L.J. 355, 360-61 (1988);
280. see also Alan Brudner, The Unity of the Common Law 211-60 (1995) (laying out a retributivist justification of the common law "unequivocality" test as grounded in the attempter's denial of his intended victim's right).
281. One might object that at some point it becomes counterproductive to increase the punishment for attempt proportionately with the risk it creates because bringing the punishment for attempts too close to that for the completed crime would dilute attempted' incentives to desist. When attempted and completed crimes carry roughly equal punishments, the argument goes, offenders would rationally prefer to offset the possible punishment by trying to secure the benefits from the completed crime. See Posner, supra note 19, at 229-30.
282. Most jurisdictions, however, solve this problem with a substantive "abandonment" rule which provides that abandonment of a crime is a complete defense to a charge of attempt. See Steven Shavell, Foundations of Economic Analysis of Law 557 (2004);
283. Model Penal Code §5.01(4) (1962) (laying out defense of abandonment).
284. See Omri Ben-Shahar & Alon Harel, The Economics of the Law of Criminal Attempts: A Victim-Centered Perspective, 145 U. Pa. L. Rev. 299, 322 (1996) (noting that the exemption for preparation is detrimental to society in that it reduces the costs of pre-crime activities for criminals).
285. Punishing bad thoughts without more also would almost certainly be unconstitutional. See United States v. O'Brien, 391 U.S. 367, 381-82 (1968) (discussing the constitutional necessity of basing punishment on conduct rather than thoughts and communication of ideas);
286. Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. Rev. 333, 362-68 (1991) (arguing that punishment for thoughts or bad motives alone is unconstitutional).
287. See, e.g., Samuel Kramer, An Economic Analysis of Criminal Attempt: Marginal Deterrence and the Optimal Structure of Sanctions, 81 J. Crim. L. & Criminology 398, 410-11, 414 (1990) (arguing that preparation should be punishable as a "stage one" attempt and that sanctions should increase as the wrongdoer progresses further through additional stages).
288. See generally Posner, supra note 19, at 229 (treating any criminal endangerment as requiring deterrence, subject to costs);
289. Shavell, supra note 129, at 556 (same).
290. See, e.g., United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir. 1991) (holding that placing a penis against the back and buttocks of a nine-year-old boy is not a "substantial step" toward the consummation of the crime of aggravated sexual abuse);
291. United States v. Buffington, 815 F.2d 1292, 1301-03 (9th Cir. 1987) (holding that procurement of handguns and disguise materials and twice driving by a bank slowly does not cross the "substantial step" line for attempted bank robbery);
292. People v. Rizzo, 158 N.E. 888, 888 (N.Y. 1927) ("The police of the city of New York did excellent work in this case by preventing the commission of a serious crime.... Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of a crime, as defined by our law, is, however, another matter.").
293. See supra notes 26-29 and accompanying text.
294. Model Penal Code §5.01(1)(c) (1962).
295. Specifically, Model Penal Code §5.01(2) provides: Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (a) lying in wait, searching for or following the contemplated victim of the crime; (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (c) reconnoitering the place contemplated for the commission of the crime; (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;(...)
296. See Model Penal Code §5.01 explanatory note (noting that where preparatory conduct strongly corroborates the actor's criminal purpose, the issue of guilt must be submitted to the jury);
297. see also id. §5.01 cmt. 6(c) ("[T]he judge can refuse to submit the issue to the jury or refuse to accept the decision of the jury only if there is insufficient evidence of criminal purpose or there is no reasonable basis for holding that the defendant's conduct was 'strongly corroborative' of the criminal purpose attributed to him.").
298. See 2 McCormick on Evidence 478-83 (6th ed. 2006);
299. see also County Ct. of Ulster County v. Allen, 442 U.S. 140, 157 (1979) (holding that, as long as fact-finders remain free to decide the case either way under the "proof beyond a reasonable doubt" standard, any inference they can rationally draw satisfies due process). The jury, of course, would then be free to go on to convict the defendant of attempt on the basis of that evidence.
300. Model Penal Code §5.01(2)(a)-(b) (1962).
301. Id. §5.01(2)(e)-(f).
302. Id. §5.01(2)(c).
303. Id. §5.01(2)(d).
304. Several states have adopted the same evidentiary framework. See Model Penal Code §5.01 cmt. 6(b), at 332 n.131 (1985) (noting that Connecticut and Maryland include substantially the same list of factors within the provision as enacted and that four other states include the list in commentaries).
305. See, e.g., United States v. Anderson, 987 F.2d 251, 255-56 (5th Cir. 1993);
306. State v. Rollett, 80 S.W.3d 514, 523 (Mo. Ct. App. 2002).
307. See, e.g., Cal. Penal Code § 455 (West 2006) ("The placing or distributing of any flammable, explosive or combustible material or substance, or any device in or about any structure, forest land or property in an arrangement or preparation with intent to eventually willfully and maliciously set fire to or burn same, or to procure the setting fire to or burning of the same shall, for the purposes of this act constitute an attempt to burn such structure, forest land or property.").
308. See Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and its Processes: Cases and Materials 572-73 (7th ed. 2001) (observing that "the law today contains many instances of merely preparatory behavior defined as substantive crimes" and reviewing examples from various statutes);
309. Ira P. Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1, 16-25 (1989) (listing and analyzing a variety of preparatory offenses).
310. 1 Paul H. Robinson, Criminal Law Defenses § 2(a), at 3 n.1 (1984 & Supp. 2005) (laying out a comprehensive list of defenses).
311. See generally Fletcher, supra note 15, at 759-875 (examining theoretical bases of numerous defenses).
312. Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199, 203 (1982).
313. See id.;
314. Robinson, supra note 147, § 21, at 70.
315. Official commentaries accompanying the Model Penal Code, for instance, note that the "Code does not... attempt to draw a fine line between all those situations in which a defense might more precisely be labelled a justification and all those situations in which a defense might more precisely be labelled an excuse ... on the belief that any possible value of attempting such a line would be outweighed by the cost of complicating the content of relevant provisions." Model Penal Code, intro. to art. 3, at 2-3 (1985).
316. See, e.g., id. at 2-4;
317. Joshua Dressler, Justifications and Excuses: A Brief Review of the Concepts and the Literature, 33 Wayne L. Rev. 1155 (1987);
318. Albin Eser, Justification and Excuse, 24 Am. J. Comp. L. 621 (1976);
319. George P. Fletcher, Domination in the Theory of Justification and Excuse, 57 U. Pitt. L. Rev. 553, 563-67, 576-78 (1996);
320. Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 Colum. L. Rev. 1897 (1984).
321. See Robinson, supra note 148, at 213 ("The harm caused by the justified behavior remains a legally recognized harm which is to be avoided whenever possible. Under the special justifying circumstances, however, that harm is outweighed by the need to avoid an even greater harm or to further a greater societal interest.").
322. See Fletcher, supra note 15, at 811 ("Excuses ... do not constitute exceptions or modifications of the [prohibitory] norm, but rather a judgment in the particular case that an individual cannot be fairly held accountable for violating the norm.");
323. see also George P. Fletcher, The Individualization of Excusing Conditions, 47 S. Cal. L. Rev. 1269, 1304-05 (1974).
324. See 2 Robinson, supra note 147, § 132, at 99-100 ("The burden of production for the defense of self-defense is always on the defendant. The burden of persuasion is almost always on the state, beyond a reasonable doubt.") (citations omitted);
325. id. at 99 nn.11-12 (citing supporting federal and state cases);
326. id. § 124(a), at 47 ("The burden of production for the defense of lesser evils (choice of evils, necessity) is always on the defendant. The burden of persuasion is nearly always on the state, beyond a reasonable doubt, and is for the determination of the trier of fact.") (citations omitted);
327. id. at 47 nn.2-3 (citing supporting federal and state cases);
328. see also 1 Barbara E. Bergman & Nancy Hollander, Wharton's Criminal Evidence § 2.10, at 64 nn.97-99 (15th ed. 1997 & Supp. 2006) (citing supporting federal and state cases with respect to the burden of production and persuasion where self-defense is alleged).
329. See Dixon v. United States, 126 S. Ct. 2437, 2445 (2006) (observing that "the common law long required the defendant to bear the burden of proving the existence of duress");
330. LaFave, supra note 54, § 8.3, at 427 ("In about ten states,... the prosecution must ... prove [sanity] beyond a reasonable doubt. In the other states, the burden of persuasion is on the defendant to convince the jury of his insanity, usually by the civil standard of a preponderance of the evidence.") (citations omitted);
331. Robinson, supra note 147, § 102(a)(2), at 483 ("The burden of production for the defense of extreme emotional disturbance is nearly always on the defendant.... [T]he burden of persuasion for the defense is usually placed on the defendant, by a preponderance of the evidence.") (citations omitted). Some jurisdictions go even further in cases of insanity, requiring defendants to prove it by clear and convincing evidence or even beyond a reasonable doubt.
332. See, e.g., 18 U.S.C. § 17(b) (2001) (clear and convincing evidence, in federal cases);
333. Ala. Code § 13A-3-1(c) (2005) (clear and convincing evidence);
334. N.H. Rev. Stat. Ann. § 628:2(II) (1996) (same);
335. S.D. Codified Laws § 22-5-10 (1998) (same);
336. Leland v. Oregon, 343 U.S. 790, 798 (1952) (upholding constitutionality of Oregon statute requiring defendant to prove insanity beyond all reasonable doubt). The Model Penal Code rejects this burden-shifting approach for excuses,
337. see Model Penal Code § 1.12(1)-(2), although it is not widely followed on this point.
338. See Patterson v. New York, 432 U.S. 197, 204-06, 210 (1977).
339. See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence 134-39 (3d ed. 2003) (explaining that where a defense overlaps with the elements of a crime, the prosecution must disprove it beyond a reasonable doubt);
340. see, e.g., United States v. Goodwin, 440 F.2d 1152, 1156 (3d Cir. 1971) ("[A] mistake of fact which negates the existence of the necessary criminal intent will constitute a defense.").
341. For an example of statutory language that would do so for both excuse and justification defenses, see Model Penal Code § 1.13(9) (stating that '"element of an offense' means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as ... negatives an excuse or justification for such conduct").
342. See Patterson, 432 U.S. at 207-08 (holding that states can require defendants to prove any affirmative defense by a preponderance of the evidence and that the Constitution does not put states "to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within [their] constitutional powers to sanction by substantial punishment"). Both the Due Process Clause, U.S. Const. amend. V. XIV, and the Cruel and Unusual Punishments Clause, U.S. Const, amend. VIII, impose some outer limits on a jurisdiction's ability to define the elements of a crime in a way that shifts to a defendant the burden to disprove his own criminality.
343. See Patterson, 432 U.S. at 210;
344. John Calvin Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1370-79 (1979).
345. See generally McCormick, supra note 138, at 527-30 (outlining the constitutional limits of the "affirmative defense" doctrine).
346. See, e.g., Fla. Stat. Ann. § 782.04 (West 2000) (defining actus reus of murder as "[t]he unlawful killing of a human being");
347. Ga. Code Ann. § 16-5-1 (2003) (defining actus reus of murder as causing the death of another human being "unlawfully and with malice aforethought");
348. Okla. Stat. tit. 21, § 701.7 (2002) (same);
349. Or. Rev. Stat. Ann. § 163.005 (West 2003) (defining actus reus of homicide as killing another human being "without justification");
350. Miss. Code Ann. § 97-3-35 (2006) (defining actus reus of manslaughter as killing a human being "in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense").
351. See supra note 157 and accompanying text;
352. see also Mullaney v. Wilbur, 421 U.S. 684, 686, 702-04 (1975) (holding that, because a "heat of passion" defense necessarily negated the "malice aforethought" element of a murder statute, constitutional due process required the prosecutor to disprove the defense beyond a reasonable doubt).
353. One major exception is George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880 (1968);
354. see also Robinson, supra note 148, at 250-63.
355. See McCormick, supra note 138, at 475 ("A doctrine often repeated by the courts is that where the facts with regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving the issue.").
356. See Paul H. Robinson, Criminal Law: Case Studies & Controversies 663 (2005) ("While we may tend to think of excuses as being very subjective, the fact is that in principle all modern excuses hold an actor to some form of objective standard in judging his or her efforts to remain law-abiding. Several excuses have explicit objective standards as part of their criteria."). Insanity and, to a lesser extent, intoxication are the main exceptions. Even for those excuses, however, proof of the subjective states on which they turn overwhelmingly involves objective evidence (for example bizarre behavior). For a good overview of the various excusing conditions recognized in criminal law,
357. see id. at 657-771.
358. See, e.g., Del. Code Ann. tit. 11 § 464(b) (2001) ("[A] person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used . . . .");
359. Tex. Penal Code Ann. § 9.32(a) (Vernon 2003) ("A person is justified in using deadly force against another . . . if a reasonable person in the actor's situation would not have retreated . . . .");
360. Model Penal Code §§ 2.02(2)(c)-(d), 3.09(2) (1962) (incorporating "the actor's situation" and "the circumstances known to him" into the reasonableness inquiry for self-defense).
361. See, e.g., Fletcher, supra note 15, at 799 ("If [an actor] disables an aggressor in order to save the life of another, his conduct speaks well for his courage .... Justifications require good reasons for violating the prohibitory norm; someone who chooses to act on these reasons is likely to deserve respect and praise rather than blame.").
362. See, e.g., Fletcher, supra note 15, at 857-58 (culpability-centered account);
363. Larry Alexander, Crime and Culpability, 5 J. Contemp. Legal Issues 1 (1994) (same);
364. Paul H. Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. Rev. 266, 272-91 (1975) (harm-centered account);
365. David Wasserman, Justifying Self-Defense, 16 Phil. & Pub. Aff. 356 (1987) (agency-based "forced choice" account).
366. See Shavell, supra note 129, at 566 (arguing that allowing the use of protective force enhances deterrence of aggression by warding off aggressors more efficiently than the police).
367. See, e.g., Model Penal Code § 3.02(1)-(2) (1962) ("Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that ... the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged ... [unless] the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct ....");
368. N.Y. Penal Law § 35.05 (McKinney 2004) (laying out a similar necessity defense);
369. Shavell, supra note 129, at 566 ("The defense of necessity may be asserted when an individual, forced by circumstances to choose between two harmful acts, chooses the less harmful act.").
370. See, e.g., Fletcher, supra note 15, at 799 ("In a case of justified conduct, the act typically reflects well on the actor's courage or devotion to the public interest.").
371. This is not to say, of course, that the two theories always agree, especially around the margins. For an example in which deterrence might allow a necessity defense while at least some varieties of retributivism might not, see the famous case of Regina v. Dudley & Stephens, (1884) 14 Q.B.D. 273 (involving cannibalism on the high seas). Nor is it to say that there might not be other reasons for shifting the burden of proof with respect to some justification defenses.
372. See, e.g., Posner, supra note 19, at 221;
373. Shavell, supra note 129, at 561-66.
374. See, e.g., Robinson, supra note 147, § 102(a), at 479 ("The defenses of provocation and extreme emotional disturbance attempt to take account of circumstances that may reduce [but not eliminate] the blameworthiness of a defendant who satisfies the normal requirements of murder, but who acts in part because of special provoking circumstances."). Again, the precise reasons for why excusing conditions vitiate blameworthiness differ depending on the particular version of retributivism.
375. See, e.g., Peter Arenella, Character, Choice, and Moral Agency, in Crime, Culpability, and Remedy 59 (E. Paul et al. eds., 1990);
376. Sanford H. Kadish, Excusing Crime, in Blame and Punishment 81, 86-88 (1987);
377. Michael S. Moore, Choice, Character, and Excuse, in Crime, Culpability, and Remedy, supra, at 29;
378. George Vuoso, Background, Responsibility, and Excuse, 96 Yale L.J. 1661, 1679-85 (1987).
379. See Fletcher, supra note 15, at 817 (observing that "excuses derive primarily from commitment to do justice in the particular case" and that they are "an expression of compassion in the criminal process");
380. Hart, supra note 13, at 13-14.
381. 10 Mich. 212, 219 (1862);
382. see also, e.g., N.Y. Penal Law § 125.20(2) (McKinney 2006) (reducing murder to manslaughter if committed "under the influence of extreme emotional disturbance");
383. Model Penal Code § 210.3(1)(b) (1962) (reducing murder to manslaughter if "committed under the influence of extreme mental or emotional disturbance").
384. Robinson, supra note 164, at 268.
385. Maher, 10 Mich, at 219;
386. see also LaFave, supra note 54, at 654-55 ("[O]ne who reacts to the provocation by killing his provoker should not be guilty of murder. But neither should he be guilty of no crime at all.").
387. See, e.g., Victoria Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1338 (1997) ("[W]e excuse not because reasonable men kill but because the law sees reason in the defendant's emotion ....");
388. Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J. Crim. L. & Criminology 1, 33-34 (1984) ("Reasonable people do not kill no matter how much they are provoked . . . . We cheapen both life and our conception of responsibility bymaintaining the provocation/passion mitigation.").
389. See Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 Colum. L. Rev. 269, 311-12 & n.178 (1996) (arguing that economic and other consequentialist theories favor intensifying penalties for emotionally driven killings).
390. But see Alon Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative Fault, 82 Cal. L. Rev. 1181, 1193-97 (1994) (arguing that provocation and similar doctrines may promote efficiency by providing victims an incentive to take precautions against crime).
391. See Kahan & Nussbaum, supra note 179, at 310-12.
392. See, e.g., Model Penal Code § 2.09(1) (1962) (conditioning availability of the duress defense on whether "a person of reasonable firmness in [the defendant's] situation would have been unable to resist" the threat);
393. Zelenak v. Commonwealth, 475 S.E.2d 853, 855 (Va. Ct. App. 1996) (finding defendant's susceptibility to intimidation and manipulation relevant to establishing her duress defense).
394. See Clark v. Arizona, S. Ct. 2709, 2716 (2006) (analyzing and upholding the constitutionality of one such provision in Arizona law);
395. Model Penal Code § 4.01(1) (laying out a common modern version of the insanity defense);
396. M'Naughten's Case, (1843) 8 Eng. Rep. 718, 721 (H.L.) (laying out one classic version of the defense);
397. Davis v. United States, 165 U.S. 373, 378 (1897) (expanding upon the M'Naughten test in federal cases).
398. The defense of diminished responsibility covers mental or emotional disturbances that neither amount to insanity nor negate the defendant's mens rea. See, e.g., United States v. Leandre, 132 F.3d 796, 803 (D.C Cir. 1998) (explaining the federal version of diminished responsibility, embodied in U.S. Sentencing Guidelines Manual § 5K2.13 (1997)). Few American jurisdictions recognize the defense. In those that do, it often functions as a "partial" defense, much like provocation, mitigating punishment or allowing conviction for a lesser-included offense.
399. See Kadish & Schulhofer, supra note 146, at 1004-05 (discussing the diminished responsibility defense and reviewing jurisdictions in which it applies).
400. Jeremy Bentham in fact attempted to explain excuse defenses in criminal law on just this ground. See Bentham, supra note 32, at 170-73.
401. See, e.g., Fletcher, supra note 15, at 816 (noting that there is no reason to believe that the potential deterrent effect of punishment in cases involving excuses would be limited to persons sharing the precise characteristics that define the excuse);
402. Herbert L. Packer, The Limits of the Criminal Sanction 110 (1968) (same);
403. Hart, supra note 13, at 19 (critiquing Bentham's argument as a "spectacular non sequitur"). For deterrence, then, the categories of excuse and justification are largely irrelevant. What matters is whether recognizing any given defense would increase social welfare.
404. See Robinson, supra note 164, at 658 ("That excuses are in fact recognized by current doctrine suggests that in this instance desert and possibly special deterrence are the guiding distributive principles ....").
405. See, e.g., United States v. Becerra-Montes, 181 Fed. App'x 743, 745 (10th Cir. 2006);
406. United States v. Salazar-Samaniega, 361 F.3d 1271, 1278 (10th Cir. 2004);
407. In re Canfield, 190 F. 266, 269-70 (S.D.N.Y. 1911);
408. see also Stein, supra note 19, at 149-50.
409. See supra note 178 and accompanying text.
410. Excuses will thus function less as conduct rules directed primarily at citizens than they will as decision rules directed primarily at adjudicators. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 626-36 (1984) (laying out distinction between decision rules and conduct rules).
411. See supra notes 173-174 and accompanying text.
412. See supra text accompanying notes 19-25 (explaining retributivism's stance toward false positives and false negatives).
413. Every modern American jurisdiction has reduced its substantive criminal law to statutory codification through the legislative process. See Paul H. Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154 U. Pa. L. Rev. 335, 337-41, 365 (2005).
414. See Dan-Cohen, supra note 189, at 665-67 & n.110 (outlining grounds on which some might question the legitimacy of "selective transmission" as a means for softening the edges of political conflicts with respect to criminal laws);
415. cf. Kahan, supra note 30, at 414 (identifying and critically assessing the use of deterrence discourse as a means for attenuating political clashes in the criminal law domain).
416. See John Rawls, Political Liberalism 133-58 (expanded ed. 2005) (developing and defending the notion of overlapping consensus between rival moral viewpoints);
417. Cass R. Sunstein, Legal Reasoning and Political Conflict 35-54 (1996) [hereinafter Sunstein, Legal Reasoning] (arguing that incompletely theorized agreements in law serve a liberal function of fostering consensus and stability);
418. Cass R. Sunstein, Incompletely Theorized Agreements in Constitutional Law 13 (University of Chicago John M. Olin Law & Economics Working Paper No. 322, 2d Series, 2007) [hereinafter Sunstein, Incompletely Theorized Agreements] (observing that "two goals of a constitutional democracy and a liberal legal system [are] to enable people to live together[] and to permit them to show each other a measure of reciprocity and mutual respect").
419. Kahan, supra note 30, at 479.
420. See id. at 479;
421. see also Sunstein, Legal Reasoning, supra note 194, at 36 (explaining how "incompletely specified agreements" encourage such convergence because they "help produce a degree of social solidarity and shared commitment," "constitute a democratic culture," "allow[] people to show one another a high degree of mutual respect," and "permit citizens to announce to one another that society shall not take sides on [politically contested] issues until it is required to do so").
422. See Rawls, supra note 194, at 98-99 (explaining how individual autonomy depends on a liberal society's proper ordering of political values);
423. Kahan, supra note 30, at 479 (arguing that liberal legislative choices must "disclaim any grounding in contentious moral presuppositions" so that "dissenting citizens can acquiesce in them without feeling that they are being forced to renounce their defining outlooks and commitments").
424. See Kahan, supra note 30, at 479;
425. Sunstein, Legal Reasoning, supra note 194, at 46-47;
426. Sunstein, Incompletely Theorized Agreements, supra note 194, at 14 (arguing, in part, that incompletely theorized agreements in constitutional law serve the "crucial function of reducing the political cost of enduring disagreements" because they "disavow large-scale theories" and thereby avoid rejecting or endorsing any abstract notion of the good or the right).
427. Kahan, supra note 30, at 422;
428. see also Joshua Dressler, Battered Women and Sleeping Abusers: Some Reflections, 3 Ohio St. J. Crim. L. 457, 471 (2006) ("Nowhere does morality play a more important role than in our criminal laws.").
429. See, e.g., Husak, supra note 16, at 207 (arguing that, because of its extreme and coercive consequences for the individual, criminal law should be used only as a last resort).
430. See, e.g., Janice Nadler, Flouting the Law, 83 Tex. L. Rev. 1399, 1407-31 (2005) (furnishing experimental evidence to the effect that a law's perceived legitimacy influences citizens' willingness to comply with laws generally);
431. Robinson & Darley, supra note 36, at 477-88 (explaining that the criminal law's power to nurture and communicate societal norms is intimately connected to its moral credibility);
432. see also Sunstein, Legal Reasoning, supra note 194, at 43 ("Any simple, general, and monistic or single-valued theory of a large area of the law ... is likely to be too crude to fit with our best understandings of the multiple values that are at stake in that area.").
433. See supra Part I.
434. Sunstein, Legal Reasoning, supra note 194, at 37;
435. see also Joseph Raz, The Morality of Freedom 58 (1986) (observing that the practice of having such rules "allows the creation of a pluralistic culture [because it] enables people to unite in support of some 'low or medium level' generalizations despite profound disagreements concerning their ultimate foundations, which some seek in religion, others in Marxism or in Liberalism, etc.");
436. Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 953, 971 (1995) (similar).
437. Sunstein, Legal Reasoning, supra note 194, at 37 ("What I am emphasizing here is that when people diverge on some (relatively) high-level proposition, they might be able to agree when they lower the level of abstraction.");
438. id. at 39 ("The use of low-level principles or rules generally allows ... citizens to find commonality and thus a common way of life without producing unnecessary antagonism.").
439. Id. at 41 ("[I]t is an advantage, from the standpoint of freedom and stability, for a legal system to be able to tell most losers - many of whom are operating from foundations that have something to offer or that cannot be ruled out a priori - that their own deepest convictions may play a role elsewhere in the law.").
440. See Kahan, supra note 30, at 417 (noting that "the deterrence idiom takes the political charge out of contentious issues and deflects expressive contention away from the criminal law");
441. id. at 480 ("Once the law gets out of the business of 'sending messages' about whose values and commitments count and whose don't, it no longer serves as a lightning rod for expressive zealotry.");
442. Dan-Cohen, supra note 189, at 672 (identifying a similar function of decision rules and conduct rules in criminal law);
443. see also Sunstein, Legal Reasoning, supra note 194, at 38 (noting that "a key social function of rules is to allow people to agree on the meaning, authority, and even the soundness of a governing provision in the face of disagreements about much else");
444. Sunstein, Incompletely Theorized Agreements, supra note 194, at 13 (arguing that "[s]ilence ... can help minimize conflict" because relying on rules and low-level principles as grounds for decisions "make[s] it unnecessary to resolve fundamental disagreements").
445. See supra notes 61-85 and accompanying text;
446. see also Bierschbach & Stein, supra note 41, at 1779 & n.173 ("Facially neutral procedural and evidentiary rules that make liability more difficult to prove minimize the appearance of overt tradeoffs between instrumental (optimal deterrence) and non-instrumental (moral condemnation) concerns ....").
447. See supra notes 171-91 and accompanying text.
448. See Kahan, supra note 30, at 435-76 (demonstrating the consensus-inducing effect of the deterrence idiom on the politically contested issues of capital punishment, gun control, and hate crimes).
449. Doing so would require, among other things, a philosophically ambitious investigation into the nature and limits of public reason. See Rawls, supra note 194, at 247-54.