Third-Party Interests in Criminal Law

Abstract

Traditional criminal law theories provide little account of third-party interests injured from punishment of offenders. We define offenses, and the necessity for prosecution, by the culpability and harm caused by criminal conduct, and set the overarching goals of criminal law - deterrence, retribution, or some mixture of the two - as guides for when and how much to punish. Despite that commitment, the practice of criminal law sometimes explicitly accommodates concerns for punishment?s collateral consequences to third parties. Third-party interests now appear in both prosecutorial charging guidelines and judicial sentencing decisions as rationales for leniency. This intermittent concern for collateral harms poses practical problems of defining which third-party interests. It also leads to treating like cases differently. We accommodate third-party interests by moderating prosecution and punishment, but we do so haphazardly and unevenly across the spectrum of criminal practice. Conceptually, mitigation of collateral consequences calls into question both the descriptive accuracy and the prescriptive utility of dominant theories of criminal law, deontological retributivism and deterrence-oriented utilitarianism. Our practical concern for third-party interests signals the necessity of criminal law paying attention to its broader social consequences. Mitigating third-party interests is likely necessary at times to maintain the legitimacy of criminal law, even as conflicting commitments to distributive fairness, retributive justice and crime prevention sometimes necessitate punishment. This essay explores the problems of third-party interests and describes some implications for criminal justice of downgrading the primacy of retributivism and deterrence in order to view criminal law more as a pragmatic, administrative process that accommodates multiple, conflicting policy interests.