William & Mary Law Review Volume 52 (2010-2011) Issue 1 Article 2 October 2010 A Distributive Theory of Criminal Law Aya Gruber [email protected] Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Criminal Law Commons Repository Citation Aya Gruber, A Distributive Theory of Criminal Law, 52 Wm. & Mary L. Rev. 1 (2010), https://scholarship.law.wm.edu/wmlr/vol52/iss1/2 Copyright c 2010 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr William and Mary Law Review VOLUME 52 NO. 1, 2010 A DISTRIBUTIVE THEORY OF CRIMINAL LAW AYA GRUBER* ABSTRACT In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishmentretributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly * Professor of Law, University of Colorado Law School. I would like to thank Jorge Esquirol, Duncan Kennedy, Randy Benzanson, Arthur Bonfield, Cyra Choudhury, andré cummings, Michelle Falkoff, Herb Hovenkamp, Nick Johnson, Cynthia Lee, Angela Onwuachi-Willig, Todd Pettys, Carolyn Ramsey, Pierre Schlag, Peggie Smith, Sascha Somek, Jerry Wetlaufer, and Ahmed White for their helpful input. This Article benefitted immensely from presentation at the Iowa Legal Studies Workshop and the Colorado Faculty Colloquium. 1 2 WILLIAM AND MARY LAW REVIEW [Vol. 52:001 distributive when they mete out punishment for the purpose of ensuring victim welfare. This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms. Understanding much of modern criminal law as distribu- tion highlights an interesting political contradiction. For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another. But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims. Exposing criminal law as distributionist undermines these individu- als’ claimed pre-political commitment against government distribu- tion. 2010] DISTRIBUTIVE THEORY OF CRIMINAL LAW 3 TABLE OF CONTENTS INTRODUCTION ......................................... 4 I. DISTRIBUTION IN TORT AND CRIMINAL LAW ............... 11 A. Fault, Utility, and Distribution in Tort Law ........... 12 B. Retribution, Utility, and Distribution in Criminal Law .................................... 16 II. DISTRIBUTION EXPLAINS CLASSIC CRIMINAL LAW QUANDARIES ................................... 23 A. Felony Murder ................................... 24 B. The Attempt-Crime Divide .......................... 34 III. DISTRIBUTIONIST SENTIMENTS UNDERLIE MODERN PENOLOGY ................................. 39 A. Distribution in the Victims’ Rights Movement .......... 41 B. Distribution in Criminal Law Reform ................ 47 1. Sentencing Reform .............................. 48 2. Victim Impact Evidence Law ...................... 52 IV. POWER, POLITICS, AND DISTRIBUTION’S FATE ............ 58 CONCLUSION ......................................... 72 4 WILLIAM AND MARY LAW REVIEW [Vol. 52:001 [A]s a simple matter of distributive justice, a decent and compassionate society should recognize the plight of its victims and design its criminal system to alleviate their pain, not increase it. Anthony Kennedy 1 INTRODUCTION For centuries, penal theorists have debated the ethical origins of criminal liability and punishment. From the collective theorizing of thousands of the brightest minds, tomes of legal literature, and hundreds of years of debate, two predominant justifications of criminal punishment have emerged: retributivism and utilitarian- ism.2 Although there are multiple twists on these themes, the basic concept is that criminal liability is justified either because the of- fender deserves punishment3 or because punishment makes society safer, whether through deterrence, rehabilitation, or incapacitation.4 The goal of this Article is to demonstrate that, contrary to most conventional thought, the philosophy underlying many areas of modern American criminal law has less to do with fault or utility than with distribution. Distribution involves fashioning legal rules to achieve a desirable equilibrium between specific individuals or between individuals and society.5 In private disputes, when two 1. Judge Anthony Kennedy, Address at the Sixth South Pacific Judicial Conference (Mar. 3-5, 1987), in George Nicholson, Victims’ Rights, Remedies, and Resources: A Maturing Presence in American Jurisprudence, 23 PAC. L.J. 815, 828 (1992). 2. See Kent Greenawalt, Punishment, in 3 ENCYCLOPEDIA OF CRIME AND JUSTICE 1282, 1284 (Joshua Dressler ed., 2d ed. 2002) (calling these the “dominant approaches”); PAUL H. ROBINSON, CRIMINAL LAW: CASE STUDIES & CONTROVERSIES 83 (2005) (stating that utilitarianism and retributivism are the traditional punishment justifications). 3. See Michael S. Moore, The Moral Worth of Retribution, in RESPONSIBILITY, CHARACTER, AND THE EMOTIONS 179, 179 (Ferdinand Schoeman ed., 1988) [hereinafter Moral Worth] (commenting that retributivism is a “straightforward theory” that justifies punishment “only because offenders deserve it”). 4. See Russell L. Christopher, Deterring Retributivism: The Injustice of “Just” Punishment, 96 NW. U. L. REV. 843, 857 (2002) [hereinafter Deterring Retributivism] (calling rehabilitation, incapacitation, and deterrence the “principal consequentialist theories of punishment”). 5. See Richard O. Brooks, “The Refurbishing”: Reflections upon Law and Justice Among the Stages of Life, 54 BUFF. L. REV. 619, 666 (2006) (observing that distributive justice requires “various goods [be] distributed according to some criterion”); infra Part IV. 2010] DISTRIBUTIVE THEORY OF CRIMINAL LAW 5 persons’ interests conflict over a scarce good, a distributive principle dictates that the resource be allocated in a just way, which may or may not involve rights claims or maximizing utility.6 The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable (as he may not have intended harm) and not because such punishment increases net security in the world (as it empirically may not), but because punishment appropriately distributes pleasure and pain between the offender and victim.7 In the tort context, scholarly literature and case law engage in compelling analyses of rules that impose liability as a means to secure a fair distribution between parties, particu- larly of the strict liability doctrine.8 Analogous to tort’s distribution of wealth from defendant to plaintiff, criminal rules often distribute punishment to defendants in order to secure a good such as com- pensation, satisfaction, or “closure” for victims.9 Today, the distribu- tive aspects of criminal law are quite visible, as discourse regarding closure and “making victims whole” normatively endorses that criminal law should ensure a fair outcome by distributing pain to 10 offenders and thereby satisfaction to victims. 6. See John G. Culhane, Tort, Compensation, and Two Kinds of Justice, 55 RUTGERS L. REV. 1027, 1064 (2003) (noting that “distributions involve proportion; more to some means less to others”); Samuel Scheffler, Justice and Desert in Liberal Theory, 88 CAL. L. REV. 965, 986 (2000) (observing that distributive justice involves “how to allocate scarce goods among moral equals”); infra notes 40-42 and accompanying text. 7. See Michael S. Moore, Four Reflections on Law and Morality, 48 WM. & MARY L. REV. 1523, 1558-59 (2007) [hereinafter Four Reflections] (asserting that in distributive theories it matters not how but only that a person was hurt). 8. See David Rosenberg, Individual Justice and Collectivizing Risk-Based Claims in Mass-Exposure Cases, 71 N.Y.U. L. REV. 210, 228 n.43 (1996) (describing modern tort law as a “‘struggle’ between the relatively limited liability of negligence and the redistributive power of strict liability” (quoting Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 467 (1992))); Kenneth W. Simons, The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives, 17 WIDENER L.J. 719, 727-28 (2008) (describing distributive justice as a predominant justification of tort law). 9. Distribution does not have to involve wealth. See Julian Larmont & Christi Favor, Distributive Justice, in STANFORD ENCYCLOPEDIA OF JUSTICE (Edward N. Zalta ed., 2008), http://plato.stanford.edu/entries/justice-distributive