Why Does the Criminal Law Care What the Layperson Thinks Is Just? Coercive versus Normative Crime Control

Abstract

T HE criminal law codification movement of the 1960s and 70s l was guided by instrumentalist principles designed to reduce crime, rather than by retributivist notions of giving offenders deserved punishment. The Model Penal Code, which served as a model for nearly all of the period's code reforms, was explicit on the point: The Code's dominant theme is the prevention of offenses and its major goal is to forbid and prevent conduct that threatens substantial harm.1 Yet, as Part I of this Article will show, even from such a staunchly instrumentalist code came a criminal law that defers to laypersons' shared intuitions of justice on issues touching essentially all criminal cases. Why should this be so? Lay intuitions of justice hardly produce a distribution of criminal liability that maximizes the traditional crime control mechanisms of deterrence, incapacitation, and rehabilitation. In fact, as Part I will make clear, reliance upon lay intuitions of justice commonly undermines the operation of these mechanisms. Why, then, should modern American code drafters follow an unspoken principle of heeding lay intuitions of justice? One explanation might be that the drafters have an unexposed retributivist streak. Perhaps they have retained the natural impulse of most laypersons to think of criminal liability in terms of desert. If this were the case, the drafters' focus on instrumentalist arguments in explaining and justifying their code provisions would seem less than forthright. There is, however, another explanation, in which the drafters' concern for lay intuitions of justice is justified by an instrumentalist