E. ENFORCEMENT PROBLEMS

1. Do We Unjustly Empower Prosecutors?

In the first part of this chapter, we introduced a new format for criminal codes and sentencing. Our perspective places significant responsibility on jurors to ascertain the risks the actor foresaw, to determine the actor’s reasons for his action, to assess the justifiability of imposing the foreseen risk in light of those reasons, and ultimately to determine whether the actor deserves blame. The jury is the linchpin of our proposed system.

What jury? The vast majority of criminal cases do not involve a jury. Plea bargains resolve as many as 90 percent of criminal cases.171 What is it to which our criminal defendants plead guilty? Exhibiting insufficient concern? If the shoplifter, the thief, the rapist, and the murderer are all in theory guilty of the very same crime, we have greatly increased the power of prosecutors.

Our first response is that, of course, there is more to the calculation than “insufficient concern.” One must look at the harm risked, the actor’s belief in its probability, the actor’s reasons, and the like. But, still, the concern is very real. Do not prosecutors (and defendants) have considerable power to stipulate what those perceived risks and reasons were?

Perhaps. But in our view, the question is not whether there is room to bargain, but whether the bargain is fair. Our approach promotes fair bargains by not allowing for overinclusive laws that punish innocent actors. The prosecutor does not start out from an unfair position – that is, with the ability to threaten the defendant with more punishment than he deserves. Right now, the law does little to determine who shall be punished because overinclusive laws create a prosecutorial feast, at which a prosecutor may simply choose which of the many choices on the menu to select.

Our system could also employ mechanisms to provide guidance as to how previous similar cases have been treated, so that like cases will more likely be treated alike. Jury determinations in previous cases

171See Russell L. Christopher, “The Prosecutor’s Dilemma: Bargains and Punishments,” 72 Fordham L. Rev. 93, 97 and n.11 (2003).

could be published in a manner that allows prosecutors, defendants, and judges to determine how similar cases have been decided, and a judge could refuse to accept a plea that unjustifiably departed from those previous reports. Then, perhaps bargaining would take place within the law’s shadow.

We also believe that there should be other restrictions on prosecutors. It is a fact about our world that prosecutors simply lack the resources to pursue all cases. The critical question is how to distribute desert among the deserving in a world of limited resources. One problem, to which we alluded to in Chapter 1, is the question about comparative versus noncomparative desert. Should we worry if some people get what they deserve and others do not? Because we believe retributive desert is ultimately noncomparative, those who are punished to the full extent they deserve are not treated unjustly vis-à-vis those culpable actors who escape any or full punishment. But choosing whom among the culpable to prosecute may still be unfair because the criteria of selection are improper. In other words, we do not doubt that even under our system, “plea bargains [will] take place in the shadow of prosecutors’ preferences, voters’ preferences, budget constraints, and other forces,”172 but we have faith that there are moral principles to guide which exercises of discretion are permissible and which ones are not.

2. Reconciling Our Act Requirement with Concerns about Law Enforcement

There are related questions about our culpability-based code that do not stem from our endorsement of standards, but rather from our view of the criminal law’s act requirement. These concerns point in both directions. Theorists may argue that, in some ways, we improperly grant too much discretion, whereas in other ways, we tie the hands of law enforcement.

a. Concerns about Policing Thoughts: The objection that we are creating too strong a police state might best be understood as a concern about “thought police.” This concern is not new, but, one might argue, the

172See William J. Stuntz, “Plea Bargaining and Criminal Law’s Disappearing Shadow,” 117 Harv. L. Rev. 2548, 2550 (2004).

worrisome effects are more significant under our system. The objection arises in the case of factual impossibility, where the conduct itself is objectively neutral.173 So, if a hunter decides to kill his hunting buddy, but upon seeing movement in the trees he shoots at what he believes to be his buddy but is actually a deer, the hunter’s conduct from all objective appearances seems innocuous. Should we not want the conduct itself to corroborate the actor’s culpability? If not, could the police arrest perfectly legitimate acts of deer killing on the grounds that these are in fact attempts to kill human beings?

Now, of course, this objection is nothing new, but our view widens its potential applications. Because we premise liability on risking and not on harming, all sorts of seemingly innocuous conduct may actually be criminal. Perhaps more important, even truly innocent conduct could be prosecuted (mistakenly) for being criminal.

We believe this concern is unfounded. First, with any criminal case, we depend on a meaningful burden of proof. The jury must find that the actor consciously disregarded what he believed to be an unjustifiable risk. Obviously, hitting a deer is not sufficient to prove that one intended to kill (and thus consciously disregarded the risk of killing) another human being. Second, the requirement that an action unequivocally manifest criminality strikes us as wrongheaded. It has long been recognized that additional evidence that shows intent will often give meaning to an otherwise ambiguous action.174 It is this additional evidence that the jury will need to hear in order to convict; but when this evidence is available, there is no reason to require that the act speak for itself. Indeed, we find the idea that acts “objectively manifest criminality” to be incoherent; all attempts that (by hypothesis) fail will appear innocuous to an observer if she assumes no culpable mental state but “criminal” if she assumes the opposite.

In summary, our code does not require the criminal act to “manifest criminality.” Indeed, given that we believe that the heart of criminal liability is culpability, which is itself subjective, there is no way for a criminal act to perform this function. Nevertheless, we believe

173See Sanford H. Kadish and Stephen J. Schulhofer, eds., Criminal Law and Its Processes: Cases and Materials 600 (7th ed., 2001) (raising this issue in a comment in a hypothetical law review).

174See Glanville Williams, Criminal Law: The General Part 630 (2d ed., 1961).

that a meaningful burden of proof is sufficient to combat the fear of false convictions.

b. Concerns about Crippling Law Enforcement: Although many may believe that our code gives too much power to law enforcement, others might complain that our approach ties the hands of law enforcement. This objection likewise stems from our act requirement. Specifically, our view that an actor has not committed a culpable act until he has unleashed a risk of harm over which he no longer has control may prevent law enforcement from preventing crime.

To take the strongest case against our position, consider sexual predators. A current law enforcement technique is to have a police officer pose as a young child in an Internet chat room. An email exchange might ultimately result in the discussion of sexual activity, and “the minor” will set up a meeting. The “sexual predator” will then appear at the designated place in the hope of engaging in illegal sexual conduct. Under current law, these are attempts to engage in the unlawful sexual conduct.175 Under our approach, however, they appear not to be punishable, as their risks have yet to be unleashed and beyond the predators’ control.

Let us begin by admitting that these cases would not be crimes under our framework. A sexual predator who only gets near his victim retains complete control over whether or not he will ultimately engage in the sexual conduct. Although at some point, a sexual predator (or even a common rapist) may get close enough to consummation that he will cause fear of a nonconsensual attack – a fear that will in fact give rise to the victim’s right to use defensive force – he still will not have unleashed the risk of violating the victim’s sexual autonomy and causing the victim physical harm. Indeed, in cases involving what, but for the victim’s age, would be consensual sexual activity, it appears that the culpable act will be the act of penetration (or a similar act).

If, however, we are to remain a liberal society committed to the idea that individuals possess free will and moral responsibility, we cannot say that the actor deserves criminal punishment until he has committed this culpable act. We may fear that such an actor will eventually succeed

175For a discussion of the issues presented by such cases, see Audrey Rogers, “New Technology, Old Defenses: Internet Sting Operations and Attempt Liability,” 38 U. Rich. L. Rev. 477 (2004).