Preventive Justice and the Presumption of Innocence

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.     

Rethinking The Ends of Harm

In The Ends of Harm, Victor Tadros claims that the general justifying aim of the criminal law should be general deterrence. He also takes seriously that we cannot use people as a means, and thus he argues that we may only punish people in the name of general deterrence who have a ‘duty’ to suffer. Tadros claims that this duty arises as follows: An offender initially has a duty not to harm the victim. If the offender violates that duty, the offender still has a duty to stop the harm from occurring (so that, for example, an offender would have to jump in front of his own bullet). And if the harm does occur, then the offender has a duty to rectify that harm. This duty to rectify, argues Tadros, requires the defendant not only to compensate the victim but also to protect the victim to the extent that he would have been able to have been harmed to prevent the threat from occurring. Tadros further advances intricate arguments for why the state may therefore punish the offender to protect other potential victims to the extent of the offender’s duty to rectify. This symposium contribution seeks to explore three problems with Tadros’ analysis, ultimately arguing that Tadros’ theory fails on its own terms. First, attempts present a substantial problem for Tadros’ regime because attempts do not give rise to duties to prevent harm because there is no harm to be prevented. Tadros’ attempt to account for attempts, as completed offenses of diversions of security resources, ultimately leads to punishments that bear little resemblance to the crime attempted. Such a wildly counterintuitive result creates problems for a regime premised on general deterrence, which must be understood and respected. Second, Tadros’ regime will often exempt the rich from suffering criminal punishment. Tadros claims that duties to prevent harms from occurring (by jumping in front of bullets) are only enforceable when compensation will be inadequate. However, affluent offenders may be able to fully compensate. Moreover, since the scope of the duty to suffer will be determined by what remains of the duty after the victim is compensated, affluent offenders will be able to compensate more and thereby suffer less. Again, the actual sentences will thereby bear little resemblance to the rationale for criminalization, thus threatening the deterrent message of the law. Moreover, a system that exacerbates distributive inequalities will not achieve public respect. Third, Tadros cannot justify taking the duty that the defendant owes to the victim and forcing the victim to transfer this asset to the state. In his quest to articulate a theory that does not impermissibly use defendants, he ultimately endorses a theory that impermissibly uses their victims. He thus fails to achieve the very goal he sets for himself, which is to achieve general deterrence without impermissibly using anyone.     

How to Think (Like a Lawyer) About Rape

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how (to teach students) to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well.