Golden Rule Ethics and the Death of the Criminal Law’s Special Part

ed away from such contingencies. For present purposes, we need not resolve any of these issues.Mypoint is simply that, in terms of its substance, the rule is far from simple or clear. There are also significant questions about what we might call the procedural aspects of the Golden Rule*that is, about who is supposed to apply the rule and in what circumstances. For example, is it a rule that ordinary people aremeant to apply on a case-by-case basis in their daily lives? Is the rule meant to be applied only when there exists no more specific rule on point, or where specific rules conflict? Or is it meant to be used, primarily by theorists, as a general justifying principle that explains or justifies more specific ethical rules? In my view, and in the view of many other scholars, themain point of the Golden Rule is not to provide direction to individuals whenever they have to decide how to act in a given circumstance. Such a procedure would be unwieldy and impractical. In deciding how to act morally, people*whether they are fourth graders or morally mature adults* normally tend to think not in terms of loving (or doing unto) others as they love (orwouldwish to have done to) themselves, but rather in terms of complying with a long list of specific moral norms, whether they are fairly general, thick norms such as don’t be selfish, dishonest, greedy, or disloyal; or more specific, thinner norms such as don’t kill, steal, lie, or cheat. Indeed, if Maimonides’s approach is to be followed, we should understand the Golden Rule in terms of moral norms of even greater specificity, such as the obligation to visit the sick, comfort mourners, rejoice with the bride and bridegroom, ensure that the dead are properly attended to, act hospitably to guests, be careful with other people’s money, give charity to the poor, and so forth. All of these norms, at some level of abstraction, may well be consistent with one or another formulation of the Golden Rule, and in some sense reducible to it. But my sense is that, as a matter of moral psychology, people are usually more likely to think about what is right and wrong, and how they should act in a given case, on the basis of numerous specific rules than they are on the basis of a single general rule. If I am right about this, then the Golden Rule is probably best understood as a ‘‘meta-moral’’ rule, a defining characteristic of what has been called ‘‘the moral point of view.’’ Although it may be useful in deciding which conduct is right in circumstances in which no more specific norm exists, or in which specific norms are in conflict, the rule’s main function is to provide a unifying principle that explains how these various forms of ethical behavior are linked. In that sense, the Golden Rule of the Bible plays a role that is functionally similar to generalized moral standards such as Mill’s Principle of Utility, Kant’s Categorical Imperative, and Rawls’s Difference Principle. Stuart P. Green 212 D o w n l o a d e d B y : [ G r e e n , S t u a r t P . ] A t : 1 1 : 4 0 1 7 A u g u s t 2 0 1 0 The Golden Rule and the Criminal Law The discussion in the previous section suggested that the generalized Golden Rule, though hardly without value in our moral lives, provides a poor proxy for a more detailed ethical code. In this section, I intend to argue that the authors’ general ‘‘insufficient concern’’ rule approach to defining crimes suffers from similar limitations. The first point is simply that the meaning of the authors’ insufficient concern principle, like the meaning of the Golden Rule itself, is far from clear. How exactly is an ordinary citizen supposed to make sense of the rule that he should ‘‘choose only those acts forwhich the risks to others’ interests . . . are sufficiently low to be outweighed by the interests . . . [he is] attempting to advance (discounted by the probability of advancing those interests)’’? Under this rule, is it a crime to spread a false rumor about another person? What about a true, but nevertheless embarrassing, rumor? Is it a crime to make a literally true, but misleading, statement under oath? To write a check on insufficient funds? What if one knew the funds were insufficient at the time he wrote the check? Is it a crime to usemethamphetamine? To manufacture or sell it? Is it a crime to fail to return lost property? To have sex without revealing that one is HIV positive, or that one has Hepatitis C? The authors offer a number of arguments as to why they think their proposed general rule approach is preferable to current law. First, they argue that some offense categories are too broad to make the kind of moral distinctions they say need to bemade. The category of rape, for example, is both underand overinclusive; it tends to ‘‘obscure rather than to clarify the underlying normative justifications for punishing these different types of culpable riskings’’ [266]. A rape in which the victim is ‘‘brutally beaten’’ is obviously worse than a rape in which the ‘‘victim found the rape pleasurable (as might happen in a case of deception)’’ [265 66]. Even the term ‘‘forcible rape’’ is inadequate, they say, as it fails to distinguish between ‘‘[a]n actor who suffocates his victim,’’ ‘‘an actor who punches his victim,’’ and ‘‘an actor who uses force only to hold down his victim’’ [247]. I have no problem with these points. ‘‘Rape’’ simpliciter is an overly broad offense label. So too, I would say, is ‘‘forcible rape.’’ But a better solution to the problem of imprecise offense definitions is not, as the authors would have it, to do away with traditional categories entirely and resort to a general offense of risk creation, but rather to distinguish among different forms of rape, such as first-, second-, and third-degree rape, aggravated rape, rape by deception, statutory rape, rape of a child, and so forth (as, in fact, most state criminal codes already do). Second, the authors contend that some crime categories tend to create ‘‘false distinctions between types of offenses, potentially allowing similarly culpable actors to receive significantly different penalties’’ [266]. Golden Rule Ethics 213 D o w n l o a d e d B y : [ G r e e n , S t u a r t P . ] A t : 1 1 : 4 0 1 7 A u g u s t 2 0 1 0 Here they offer the example ofmurder and manslaughter. Under the Model Penal Code, murder may be committed purposefully, knowingly, or recklessly if such recklessness manifests extreme indifference to the value of human life, while involuntary manslaughter may be committed recklessly or negligently. The distinction betweenmurder andmanslaughter, they say, is therefore a ‘‘fine one* a jury decision along a continuum. At some point, a homicide becomes so reckless that the jury thinks it warrantsmore punishment (murder) than does another, slightly less reckless, homicide (manslaughter)*they are different in degree but not in kind’’ [267]. I have no quarrel with this point either. Murder and manslaughter overlap inways that can be confusing. But here again the solution should not be to do away with these labels entirely, but instead to refine the terms so that they are more precise and meaningful. For example, we could limit use of the term murder to unjustified killings that are purposeful or intentional, and use the term involuntary manslaughter exclusively for killings that are reckless (putting aside for the moment the fact that the authors themselves reject the use ofmens rea concepts such as purposeful and intentional). Third, while acknowledging that narrow rule-based criminal offense definitions offer some benefits (such as solving coordination problems and reducing decision-making costs), the authors contend that they are too often overinclusive; they apply even when their underlying justification does not, and thus have the effect of punishing morally innocent people [297 99]. They offer an interesting example of cases in which even speed limits (which would seem to be the paradigmatic case of a necessarily narrow rule-based criminal offense) seem overinclusive [302 306]. Surely, the authors are correct that there is an unavoidable gap between the rules that legislatures enact and how citizens should behave in specific cases. But the way to bridge this gap, it seems to me, is not to eliminate the rules, but instead to give to the various actors in our criminal justice system*the police, prosecutors, judges, and juries* appropriate discretion to enforce the rules, as in fact we already do. Thus, if a driver is driving only slightly over the speed limit and doing so in a way that does not seriously endanger anyone, then we count on the police to exercise their discretion to refrain from giving him a ticket. And if the police fail to properly exercise their discretion, then the prosecutor should exercise her discretion not to pursue the charge. And if the prosecutor improperly decides to pursue the charge, then the court should decline to convict. And so on. Resorting to a system which ‘‘deleted speed limits and just required actors not to take unjustifiable risks,’’ as the authors suggest [303], would seem to me a mistake. It would give citizens too little guidance about exactly what conduct is prohibited. Fourth, the authors claim that current law does a poor job of dealing with offenses that involve multiple actions, continuous courses of conduct, repeated events, and the like. They offer as examples cases in which an offender (1) sets fire to a building, and the fire subsequently spreads to a second building, (2) carjacks a car in the possession of Stuart P. Green 214 D o w n l o a d e d B y : [ G r e e n , S t u a r t P . ] A t : 1 1 : 4 0 1 7 A u g u s t 2 0 1 0 both a driver and a passenger, (3) fondles the breasts of an underage victim while driving, stops the car, and then resumes his fondling, or (4) is ordered to stop by the police, refuses to do so, has his arm grabbed by the officers, breaks away, is tackled by police, struggles with them, again breaks away, and is ultimately subdued and placed in custody [254 55]. They also contend that current law deals inadequately with cases in which an actor imposes a single risk for a long period of time, as where a speeder speeds for 20 minutes, a fire fighter fails to put out a fire for an hour, or a rapist subjects a victim to an hours-long course of sexual assault [243, 257]. Here, the authors do a nice job of bringing out some intriguing puzzles and practical uncertainties in our current system of criminal law, and they make a persuasive point that the duration of a crime is a significant and underappreciated factor in assessing its culpability. Nevertheless, my sense is that here again problems of this sort could be dealt with effectively on an offense-by-offense basis, by means of more precise offense definitions. For example, statutes could specify that the number of counts charged will depend on the number of buildings burned (for arson), the number of cars carjacked (for carjacking), and the number of times that a victim is penetrated (in the case of rape). I agree that determining the appropriate number of counts in cases of ongoing sexual contact with a minor or resisting arrest may not be the sort of thing that can be determined by definite exante mechanical rules, but that hardly seems like a basis for throwing out the underlying traditional offense categories themselves. Finally, they say, the current system often ‘‘declare[s] an act criminal and hence punishable without any thought to the interest that is being protected.’’ The example they give here is of drug possession, for which they say one would be ‘‘hardpressed to articulate [an] underlying rationale’’ [266]. Once again, I do not disagree with their critique of current criminal law. It seems beyond dispute that our legislatures have declared certain forms of conduct criminal without carefully considering the harms they cause or the interests at stake. Butwhy should anyone think that adopting the authors’ approach to defining criminality would suddenly make our lawmaking bodies any more thoughtful or wise in their decisions? No doubt many legislators would be happy to argue that drug possession is just the sort of conduct that involves imposing unjustified risks on others. In short, I have no problem with the authors’ contention that our system of law is overcriminalized (in the sense that some prohibited conduct is overinclusive and bears only an attenuated connection to the interests protected), and that our criminal codes contain many vague, duplicative, unintelligible, and ad hoc provisions [290 91]. The question, of course, is how to fix them. Should we endeavor to refine the criminal codeswe already have so that they are more carefully formulated and more respectful of the harm principle, or should we do away with centuries of common law and legislative development and essentially start over? To ask the question is to answer it. To discard all of the morally meaningful and Golden Rule Ethics 215 D o w n l o a d e d B y : [ G r e e n , S t u a r t P . ] A t : 1 1 : 4 0 1 7 A u g u s t 2 0 1 0 culturally rich concepts and categories that exist within the special part simply because the special part happens at times to be imprecise and overreaching would constitute a clear case of throwing out the babywith the bathwater. This is not to say that there is no legitimate role within the process of criminal law-making for the authors’ insufficient concern principle. Like the Golden Rule of ethics, which provides a general principle that is useful both for assessing the validity of more specific moral norms and providing direction where no such norms exist, the authors’ general principle of culpability can provide a helpful, if incomplete, tool for assessing the appropriateness of various instances of criminalization. (The insufficient concern principle, like the Golden Rule, could also conceivably play a role as gap-filler, though the criminal law, by virtue of the principle of legality, requires that rules be made ex ante in a way that our system of ethics does not.)