Remote harms and non-constitutive crimes

Criminal Justice Ethics

Volumn 28, Issue 1, 2009, Pages 89-107

  Simester, A P ^a   von Hirsch, Andrew ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

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EID: 79954549137     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/07311290902831441     Document Type: Article

References (60)

1. The discussion in this essay is restricted to offenses designed to prevent harm to others; that is, within the scope of the harm principle.
2. Indeed, possession of a handgun is prohibited altogether within England and Wales: Firearms (Amendments) Act 1997 (UK), chap. 5.
3. We adopt the usage from D. Husak, Overcriminalization: The Limits of Criminal Law (New York: Oxford University Press, 2007), 160 and, more generally, 159-77.
4. Or, in some jurisdictions, "soliciting."
5. Cf. P. Roberts, "The Presumption of Innocence Brought Home? Kebilene Deconstructed," Law Quarterly Review 44 (2002): 48, 55-56. In our own analysis below, we shall use slightly different definitions.
6. Cf. Theft Act, 1968, s. 25(1): "A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat."
7. A. von Hirsch, "Extending the Harm Principle: 'Remote' Harms and Fair Imputation," in Harm and Culpability, ed. A. P. Simester and A. T. H. Smith (Oxford, UK: Clarendon, 1996), 259.
8. See, e.g., A. von Hirsch and A. Ashworth, Proportionate Sentencing (Oxford, UK: Oxford University Press, 2005), chap. 2;
9. A. P. Simester and G. R. Sullivan, Criminal Law: Doctrine and Theory, 3rd ed. (Oxford, UK: Hart, 2007), chaps. 1, 16.
10. Admittedly, the conclusion that particular conduct is wrongful may itself be dependent on the actor's mens rea (for elaboration of this familiar point, see, e.g., A. P. Simester, "Intoxication is Never a Defence," Criminal Law Review 14 [2009]: 3, 10-11). In such cases, the role of mens rea in establishing wrongfulness is none the less distinct from its role in establishing culpability, although in practice the two will overlap.
11. Husak, Overcriminalization, 162. Cf. Model Penal Code, § 2.02(b) (substantial risk a prerequisite of recklessness or negligence).
12. Husak, Overcriminalization, 162.
13. It is worth observing of the second constraint that many effective substantiveinchoate offenses tend by their nature to advance our interest in harm-prevention indirectly rather than directly, suggesting that Husak's more general principle may need qualification.
14. The standard analysis is outlined in von Hirsch, "Extending the Harm Principle," 261-62.
15. Husak, Overcriminalization, 165-66.
16. The proposal has some pedigree: see J. Feinberg, Harm to Others (New York: Oxford University Press, 1984), 109-114;
17. D. Husak, "The Nature and Justifiability of Nonconsummate Offenses," Arizona Law Review 37 (1995):151;
18. von Hirsch, "Extending the Harm Principle," 262.
19. Husak, Overcriminalization, 166.
20. For development of this line of thought, see A. P. Simester, "Why Distinguish Intention From Foresight?" in Simester and Smith, Harm and Culpability, 71.
21. We omit here Husak's additional criterion, "directly" (Overcriminalization, 162), which is intended to exclude consequences brought about by intervening wrongdoers. The work done by that criterion in excluding autonomous intervening actors is adequately reflected within more sophisticated legal tests of causation:
22. see Simester and Sullivan, Criminal Law: Doctrine and Theory, sec. 4.2(iii). Indeed, better reflected, since not all wrongdoers are autonomous, and not all autonomous interveners are wrongdoers.
23. This is part of the idea behind joint enterprise liability: see A. P. Simester, "The Mental Element in Complicity," Law Quarterly Review 122 (2006): 578, 598-600.
24. That is, a principle that makes specific allowance for remote-harm offenses, thus going beyond the standard harms analysis.
25. Husak, Overcriminalization, 174.
26. Ibid., 175.
27. See, e.g., J. Finnis, Natural Law and Natural Rights (Oxford, UK: Clarendon, 1980), 284;
28. A. M. Honoré, "The Dependence of Morality on Law" Oxford Journal of Legal Studies 13 (1993): 1.
29. See further the discussion of endangerment offenses, below.
30. For discussion of this constraint, see D. Husak and A. von Hirsch, "Culpability and Mistake of Law," in Action and Value in Criminal Law, ed. S. Shute, J. Gardner, and J. Horder (New York: Oxford University Press, 1993), 157.
31. Cf. von Hirsch, "Extending the Harm Principle," 261-62.
32. Cf. R. A. Duff, "Criminalizing Endangerment," in Defining Crimes: Essays on the Special Part of the Criminal Law, ed. R. A. Duff and S. P. Green (New York: Oxford University Press, 2005), 43, sec. 2. Our usage of "endangerment" differs from Duff's, in that it includes hostile "attacks" on an interest or value.
33. Although not the only reason: for example, evidential uncertainty about an actor's intentions is typically greater at the point of preliminary conduct, which is likely to be ambiguous in character.
34. Interestingly, Husak has moved his own position on this issue, now favoring a rebuttable presumption against overinclusive prohibitions rather than an outright ban
35. See Husak, Overcriminalization, 168,
36. compare his ";";Reasonable Risk Creation and Overinclusive Legislation," Buffalo Criminal Law Review 1 (1998): 599.
37. We assume here that the abstract-endangerment offense being considered is the least overinclusive formulation available. To this extent, we agree with Husak that offenses should be no more extensive than is necessary to achieve their (justified) objectives.
38. See Husak, Overcriminalization, 168.
39. Thus abstract endangerment formulations can also advance rule-of-law values see Simester and Sullivan, Criminal Law: Doctrine and Theory, sec. 2.3.
40. Selecting exceptions on the basis of identified qualifications helps circumvent the objection that they are ad hoc or a matter of self-identification*the obverse case, in effect, of restrictions imposed on those holding a provisional licence.
41. We are grateful for discussions with Nils Jareborg that prompted this line of thought.
42. Such a prohibition would be an instance of conjunctive harm, discussed below.
43. Cf. the section on "Husak's Constraints" above.
44. Completed attempts might also require intervening actors; but in such cases the interventions are typically not autonomous and free (as when D lays a trap, but V must still walk into it). Even if some completed attempts still require autonomous interventions, that possibility can generally be neglected since the remaining completedattempt cases are likely to justify criminalization on probabilistic, endangermentbased grounds.
45. By contrast with complicity liability, where S's liability lies partly in P's hands:
46. see Simester, "The Mental Element in Complicity," 578.
47. A fair labelling concern: see Simester and Sullivan, Criminal Law: Doctrine and Theory, sec. 2.4.
48. Simester, "The Mental Element in Complicity," 578.
49. Duff, "Criminalizing Endangerment," in Duff and Green, Defining Crimes, 43, 64;
50. Duff cites von Hirsch, "Extending the Harm Principle," 259.
51. Perhaps the most obvious example is the incomplete attempt, in which S's act of σ-ing is performed in order to facilitate, or as part of, S's own act of φ-ing. As we shall see, however, such a close connection is not always required.
52. R. v. Brown [1994] 1 AC 212, 246.
53. Although Saturday Night Specials may lie closer to that status than do many other weapons.
54. Once in place, handgun laws may themselves help to shape differences in cultural traditions. However, though this may be a legitimate bootstrap consideration, it cannot be relied upon to justify the initial proscription.
55. This is not to deny that there may be further reasons why S should be treated differently, and we note this possibility in the discussion of mediating considerations below.
56. Cf. von Hirsch, "Extending the Harm Principle," 271-73.
57. Note that this earlier paper treats these considerations differently, analyzing them as an imputation issue. We now think the problem is not one of responsibility but rather of freedom, in that burdens of compliance may interfere too greatly with S's freedom of choice.
58. This argument is distinct from a ruleof-law claim about greater notice: that the specialist is better able to inform himself of the specific rules applicable to this activity. The notice problem could, for non-specialists, be overcome by taking measures to publicize the rule, etc.
59. Husak requires only that "statutes are designed to prohibit a nontrivial harm or evil" and defines "consummate" offenses as those in which "each act-token of an acttype proscribed. produces a harm or evil" (Husak, Overcriminalization, 66, 160). In this essay, we have preferred the term "constitutive" to "consummate," principally in order to preserve the distinction outlined here in the text.
60. Duff, "Criminalizing Endangerment," in Duff and Green, Defining Crimes, 43, sec. 2.