The End of the Criminal Law?


Review of Criminal Law in the Age of the Administrative State, by Vincent Chiao

New York, NY: Oxford University Press, 2018


For much of the summer, our streets have been filled with protesters marching to demand transformative change of our criminal justice system. Their goal is to abolish or at least seriously shrink the reach of the carceral system by defunding the prisons and police, reallocating our resources to create jobs, fund education, reduce homelessness, treat people with mental illness, and end the current system of mass imprisonment. Whilst the criminal process sparked the protests—the police killing black men and women around the country with seeming impunity—underneath it all lies the criminal law, which is both the ultimate cause of the unrest and, for many, its solution. The raft of police killings were often justified by low-level, regulatory offenses, such as selling loose cigarettes or passing a fake twenty-dollar bill or conducting a traffic stop. The demand from some protesters has been to use the criminal law to prosecute the relevant police officers for homicide. Others, true to their abolitionist beliefs, reject even criminal prosecution. 

In Criminal Law in the Age of the Administrative State, legal scholar Vincent Chiao anticipates and reflects the polarization of the current moment. Chiao views the criminal law as a public good: but what sort of good is it? His answer is that criminal law is a political good, and should be understood and defended as such. The political perspective requires us to endorse a pragmatic and distributive account of the criminal law. Pragmatic, because criminal law is to be understood in terms of the concrete sanctions and the larger penal apparatus used to enforce those sanctions, from police to prosecutors to courts to prisons. And distributive, because the justification for criminalization depends upon whether the concrete burdens of the criminal process are parceled out so as to best promote everyone’s rights and interests equally.

The political theory of criminalization rejects most of the ways in which we account for and defend the criminal law. On the standard picture, criminal law is a moral good. It reflects and reinforces a moral order that pre-exists the criminal laws themselves and which justifies the state in criminalizing morally wrongful conduct and holding individuals accountable for their moral wrongs. Whilst most criminal law theorists tended to have little to say about the process used to enforce the criminal law, their assumption—which is slowly being addressed by a variety of punishment theorists including Chiao’s main foil, Anthony Duff—tends to treat the larger criminal process apparatus as subservient to the criminal law, as the means for hailing the guilty to court where they can be publicly condemned and punished. 

In Chiao’s picture, the criminal law is a political good. Our life together as a political community depends upon political institutions that promulgate shared, public, enforceable rules of conduct. These shared rules enable us to act cooperatively and collectively. However, because some people may violate the rules, a system of sanctions is necessary to keep everyone in order. The need for such sanctions is what justifies the criminal law. But this justification for a system of sanctions is a political justification, not a moral one. Punishment is due, not for violating some underlying moral norm, but for rendering unstable our political institutions and the system of cooperation that they make possible.

Political justifications for the criminal law are built not on top of or alongside the moral justifications. Instead, Chiao’s political understanding of the criminal law replaces the moral one, which, in his view, provides no real basis for justifying the criminal law. In this sense, Chiao is a thoroughgoing abolitionist: he seeks to dispense with the core contemporary justification of the criminal law—and with it the criminal process that is built on top of it. What sort of penal process can be defended, absent the moralistic justification of the criminal law, is a core question of the book.

If our political life together depends upon shared, public institutions, and those institutions are justified in exacting penal sanctions for non-conformity to their directives, then those institutions had better be politically defensible. Not just any political institution may legitimately promulgate criminal law. Chiao importantly goes further, and argues that not just any criminal law may be promulgated by even just political institutions. Instead, the sort of public institutions that deserve our support are just institutions which promulgate socially valuable rules and enforce those rules in a manner that justifies our support of those institutions. The means matter as much as the ends. 

Hence, a pragmatic and distributive political approach must justify the use of police, prosecutors, and prison whenever some institution chooses to criminalize conduct as a means of producing conformity. In the United States, we live in a society of mass incarceration and overcriminalization. Our society has chosen to govern through crime, and to distribute the benefits and burdens of the criminal law unequally. The idea that political institutions need the resources of the criminal law as a public good to coerce recalcitrant civilians to conform to their directives might seem to endorse this hyper-incarcerative approach. However, Chiao thinks that justifications for criminalization will, on many or even most occasions, be quite hard to come by. His shorthand for this difficulty, articulated through his preferred political defense of the criminal law, is the choice between schools now or prisons later

Whilst a variety of different political theories can articulate the criteria for just institutions operating through just means, a core part of the book is the defense of a deep and attractive version of the civic republican theory of freedom as non-domination, or what Chiao calls the political theory of anti-deference. That theory is egalitarian, inclusive, and anti-subordinating. The political system must provide everyone the same opportunity to participate in the law-making process and an equal share in benefits and burdens of the outcomes generated by that process. Furthermore, the political process should not entrench social hierarchies or otherwise oppress social groups or individuals, and punishment should be used as a last resort, only to be deployed where no other resources are available. Finally, in determining how to enforce institutional directives, everyone’s interests matter equally, whether victim, criminal, or other. 

The pragmatic and distributive account of the criminal law shares with defunders and abolitionists the demand that criminal law and its penal sanctions compete with alternative responses to rule violations (including, for example, public health responses). Chiao’s administrative approach seeks to undermine the case for some conceptually distinct criminal law, placing instead the method of the criminal law—police, prosecution, and punishment—as just one among a palate of policy responses to ensure that the public are able to access and enjoy different social goods. Where schools or public hospitals now would produce fewer prisons later, then the justification for prisons—and courts and prosecutors and police—weakens or disappears. 

So far, I have said nothing about the underlying moral permissibility or blameworthiness of the conduct that is punished through the criminal law. That is because, from Chiao’s external justification of the criminal law, a moralistic approach is irrelevant or at best secondary. Chiao rejects what he calls the “wrongfulness principle,” that the criminal law serves to punish conduct that is morally wrong, whatever the pragmatic and distributive effects of punishment would be. The book’s core question is: does the fact that some types of conduct are morally bad justify policing, prosecuting, and imprisoning those who engage in it, given the distributive effects of criminalizing it? Since the occasions that are likely to worry us are cases in which someone does something morally bad, but goes unpunished on the political account, Chiao tries to assure us that he can account for the serious cases—murder, rape, robbery—and do so for better reasons than the moralizers. 

Criminal law theorists generally acknowledge that moral justifications for criminal punishment are easier for more serious crimes, and harder for less serious crimes or regulatory offenses. That’s because regulatory offenses need not be direct moral wrongs: they may simply violate some administrative rule. There may be good reasons to criminalize pulling the tags off of pillows, but it does not seem directly morally wrong to do so. That leaves moralists stuck with either denying that tag-pulling is a crime, or arguing that it is morally wrong in a derivative sense. 

Chiao argues that the distinction between regulatory and more serious, moral offenses is difficult to maintain in practice—that “there is no inner morality to the criminal law” (160). Instead, he suggests we should acknowledge three features of criminal law that undermine moralistic justifications for criminalizing even self-evident moral wrongs. First, the sort of conduct that is self-evidently wrong is more controversial than we are apt to acknowledge. Second, many serious wrongs are not wrong independent of legal rules and regulations: property offenses, for example, depend upon property law. These crimes look much like regulatory offenses, in that they are criminal because the wrongdoer breaks some artificial set of rules. Third, even if there are some independent moral wrongs that form the core of the criminal law, that core is vanishingly small compared to the majority of the criminal law. Because the overwhelming majority of criminal law is regulatory, the core that is not cannot explain most of that law. Thus, a criminal law theory that seeks to carve out a particular subject-matter for the criminal law seems doomed from the start. 

Perhaps what marks out the criminal law, then, is its method of holding people accountable by policing, prosecuting, and punishing them. Chiao denies even this. He notes that the criminal process is more protective of defendants than the civil process—but not much more. Many serious, liberty-depriving civil hearings afford a full panoply of rights and lawyers; civil commitment is one of the examples he gives. He could also have drawn on the recent misdemeanors literature to note that, at the bottom, where defendants may lack legal representation and be convicted on a police-officer’s uncontested say-so, the criminal process may be less protective than many civil trials. Chiao’s administrative abolitionism would have us recognize that instead of insisting on a criminal-civil distinction, what we should insist upon is a fair due process, commensurate to the interests the defendant will forego if convicted. In other words, we should view pragmatically the system of subjection to the law and the sanctions that follow, whether the system and sanctions are designated “civil” or “criminal.”

This last point highlights both what Chiao gets right and what he gets wrong with his externalist, political approach to criminalization. He criticizes moralistic criminal law theory as incoherent and inconsistent because it is unable to justify broad swaths of our contemporary criminal practice. But in fact, these theories are internalist and engaged in various attempts to rationally reconstruct the criminal law that we currently have. If the moralistic theory is incoherent and inconsistent, that is because our criminal law is too. 

More fundamentally, if the moralistic theory is moralistic, that is because contemporary criminal law is moralistic through and through. A weakness of a book that bills itself as about criminal law—the first words in its title—is the almost total absence of any actual criminal law in the book. There is plenty of criminal law theory, but that is not by any measure the same thing—just as a theory about swimming is not swimming itself. The book discusses seven cases, all of them from the United States and the majority of them from the criminal procedure side of the syllabus; and his core case, DeShaney v. Winnebago County Dept. of Social Services (1989), is a constitutional tort case brought under the Equal Protection Clause about a county social services department’s failure to protect a child from abusive parenting. 

The language of morality pervades the criminal law. The central finding in any criminal case, whether trial or plea bargain, is that the defendant is guilty or innocent. The rest of the criminal law is defined by the language of fault and culpability, of wrongdoing and of reasonableness, of justification and excuse: all of these phrased in moralized terms. The moralizers turn to morality not by some perverse accident, but because that is the nature of the criminal law itself. And whilst it is refreshing to have Chiao extensively critique the individualizing nature of criminal responsibility—a feature of the criminal law that cuts the state a break for bringing about the conditions that lead to crime—that is a feature of criminal responsibility, not a just feature of theorizing about criminal law responsibility.

That moralism is an important feature both of any defense of the criminal law and of any attack. It’s an important feature of any defense because the law generally helps itself to ordinary moral categories, and the criminal law is no stranger to that. Indeed, as John Gardner argued, any theory of punishment is going to need all the help it can get, because punishment is and ought to be morally hard to defend. That’s why Gardner rejected any pure, reductive theory of punishment, and indeed eventually turned away, exasperated, from criminal law theory. 

Chiao’s disinterest in the moralizing nature of the criminal law itself causes him to miss one important critique of the criminal law. A problem with many moralizers, he well recognizes, is to treat morality as an input: to claim that the criminal law does or ought to reflect our non-criminal moral intuitions. Perhaps, however, the real problem of criminal law is that morality is its output: it claims that the people condemned in open court really are guilty of some moral wrong. This is what Gardner means when he says that the law helps itself to moral categories. We don’t ask, were you a tag-puller or a traffic offender? We just stop at “criminal,” and that is that.

This feature of treating the people criminalized through the process—whether guilty of homicide or tag-pulling—has major consequences for the subordination of people of color and for justifying hyper-incarceration. It allows those moralizers, both in the legal academy and in the general public, to assert that the millions of people currently under the supervision of the criminal justice system in the United States deserved their harsh treatment, because they have been adjudicated guilty of some crime. Worse, because the criminal law operates alongside cultural myths about race, culture, and character, the criminal law operates as a way of disciplining and stigmatizing people on the basis of race and class. The hyper-incacerative feature of the criminal law—that it targets the poor and people of color above all—is no accident. It is one of the ways in which we produce and respond to those categories in the United States. 

Chiao thus undersells his abolitionism by attacking the moralizers rather than going head on at the doctrine. The problem is not that the moralizers are mistaken about the moral content of criminal law. The problem is that, if the law cannot be justified in at least some of the moralizers’ terms, it cannot be justified—period. In that case, contemporary criminal law should all be swept away, along with its various apologetics. What would survive Chiao’s attack on legal moralism is not criminal law at all, at least not in the way we currently understand it. All that is left is administrative law, albeit with the possibility of beefed up sanctions and due process protections as an option for ensuring compliance. That may be a consummation devoutly to be wished. But it would be a categorically different system than the one we have now.



Posted on 15 October 2020

ERIC J. MILLER is Professor of Law and Leo J. O’Brien Fellow at LMU Loyola Law School, Los Angeles.