Criminalizing conduct harm principle reconsidered

For HPP2, the relevance of collateral consequences to criminalization decisions is relatively clear. But it is obvious that informal consequences such as murder, assaults, and harassment of offenders qualify. Numerous state policies bar, or expressly permit state licensing agencies to bar, people with various types of criminal convictions from certain types of employment. This means, though, that the conduct that is criminalized—the conduct for which we may receive just deserts or be held accountable—must itself be wrong. These fees themselves may in turn be subject to interest, surcharges, or collection fees. Answering this question requires a normative analysis of collateral consequences themselves. For Moore, the proper response is to mete out just deserts for wrongdoing; for Duff, it is to call individuals to answer for wrongdoing and to hold accountable, through punishment, those found guilty. This principle makes wrongness of conduct a necessary condition for its criminalization, but it does not make it a sufficient much less a decisive condition. These critics commonly argue that the restrictions, because they are not formally incorporated into the sentencing process, violate a number of legal safeguards on punishment double-jeopardy protection, notification requirements, and proportionality. That is, just as Husak notes that too much criminal law leads to too much punishment, so too does it lead to too many burdensome collateral consequences. And although legal moralism does not itself require that collateral consequences be considered, it is consistent with a side-constraint grounded in concern about wrongdoing that would require just this. It is difficult to determine exactly how many people are subject to how many collateral consequences, for a few reasons: as I discussed earlier, many collateral consequences are informal, and as such they are difficult to track. Vocations that are restricted under various state statutes include accountant, police officer, teacher, architect, barber, cosmetologist, roofer, chiropractor, plumber, interior designer, land surveyor, and farm labor contractor. One might offer a Hobbesian line of response here, that even if some fare much worse in a state than others, virtually all will do better than they would do in the state of nature. One straightforward way in which collateral consequences are relevant to criminalization is that they constitute one of the wrongs of overcriminalization.

Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights Keywords.

Rather, such a response is itself intrinsically justified in virtue of the wrongfulness of the conduct. For legal moralism, criminalization is justified not because it helps to prevent, or reduce, harms or risks of harm, but because the conduct criminalized is wrongful.

If legal moralism differed from the harm principle only about whether the locus of concern in criminalization decisions was harms or wrongs, then the line of reasoning in favor of WHPP2 for harm principle adherents would similarly count in favor of WPP2 for legal moralists.

Feinberg suggests a further amendation or clarification of the harm principle.

Criminalizing conduct harm principle reconsidered

Incarceration takes offenders away from their partners and other family members, which may lead to tensions especially if the offender generated household income or simply estrangement, such as between an incarcerated parent and her child. But a conviction brings an array of other consequences as well.

This stigma can manifest in the decisions of employers or landlords to deny jobs or housing, respectively, to offenders as I discuss below, in some cases such decisions may be explicitly authorized by legal policies.

So, on what I contend is a plausible version of the harm principle, criminalizers would be required to consider whether collateral consequences constitute harms or perhaps wrongful harms and to take them into account accordingly in making criminalization decisions.

Answering this question requires a normative analysis of collateral consequences themselves.

harm principle examples

For the harm principle, in its standard articulations, the correct way to deal with harms is to try to prevent them whether the harmful criminalized conduct itself or further harms to which the criminalized conduct is likely to contribute. There is also substantial social stigma associated with having a criminal record.

Here the question, noted earlier, of whether collateral consequences are best regarded as forms of punishment becomes centrally relevant.

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Hamish Stewart, The Limits of the Harm Principle