Criminal Law at the Margins

I describe how our understanding of some of the central principles long held dear by most (but certainly not all) criminal theorists may have to be interpreted (or re-interpreted) in light of the need to devise lenient responses (that may or may not amount to punishments) for low-level offenders. Several of the most plausible suggestions for how to deal with minor infractions force us to take seriously some ideas that many legal philosophers have tended to resist elsewhere. I briefly touch upon four topics: (1) whether informal (that is, non-state responses) can substitute for or count against the appropriate state sanction; (2) the significance of repeat offending for sentencing; (3) whether punishment for culpable public wrongdoing has intrinsic value; and (4) the scope of police powers in a liberal democratic state. The context for this discussion is R. A. Duff’s insightful examination of whether and under what conditions we should criminalize a public wrong or respond to it in some other manner.