What Is the Aim of Criminal Law?

Behind the debate about the removal of President Clinton, there is a competition between two very different views of the aims of the criminal law. Those who seek stern punishment think of criminal law as a moral talisman that separates the very few who commit crimes from the rest of society. In the rhetoric of the moralist, all crimes and all criminals should be punished or the moral fiber of society will be threatened. Any behavior that can be classified as criminal should be treated as criminal in every sense.

 

 

 Many of those who oppose removing this president on the facts now known take what I call an administrative approach, believing that offenses and the people who commit them come in a great variety and at different levels of severity, and that finding legal violation should be the beginning, not the end, of an inquiry about whether punishment is necessary. The criminal law in this view should be used selectively to instruct and deter the citizenry.

Most criminal prosecutors hold to administrative views. Independent counsel Kenneth Starr holds a moralist view.

Those who take an administrative approach delight in statistics about the federal income tax. In 1997, for example, about 130 million income tax returns were filed with the Internal Revenue Service, but only 680 Americans were indicted for income tax fraud. This tiny trickle of criminal charges is not evidence that Americans seldom cheat on taxes--millions do and hordes of taxpayers are caught red-handed by tax agents who impose financial penalties. The tax service wants to keep dishonesty at a minimum and maintain high levels of tax compliance. But it does not wish tens of thousands of taxpayers to face felony charges. Instead, it selects particularly egregious cases for prosecution.

An administrative theory of criminal law approves of selective enforcement for many crimes and believes in conserving resources rather than pushing the enforcement process to its outer boundaries. This is the kind of prosecution policy that makes plea bargaining not only rational but morally defensible.

Does this administrative approach to selective enforcement extend to the criminal law of perjury? You bet it does. In view of the number of direct testimonial conflicts in civil and criminal trials, perjury prosecutions are rare events in the United States. Whole categories of testimony where self-serving evasions are regarded as normal are almost never the foundation for a perjury charge. When a criminal defendant denies the charges on the witness stand and is nonetheless convicted, we do not expect the prosecutor to bring a new perjury indictment. When witnesses under oath say they cannot remember events, this convenient amnesia is discounted by judges and juries, and few will face perjury charges.

Lying about sexual impropriety is another area of sworn testimony where we have known for half a century that evasion and denial are nearly universal and almost never prosecuted. When lie detector expert John Reid set out to do his classic study of untruth in civil testimony, disputed paternity cases became the focus. These are cases where sexual conduct is at the center of the litigation. Did the defendant have intercourse with the plaintiff? Did the plaintiff have intercourse with any other man? The investigators tested more than 600 persons who had testified in disputed paternity cases and reported that 93% of those who testified under oath about sex had lied.

With a base rate of dishonesty in the 90% range, either our prisons are full of divorce and paternity litigants, or the cultural expectation of self-serving dishonesty leads us to discount the testimony without trying to crucify the witness who seeks to avoid sexual self-incrimination. In one major example--the divorce laws that made perjurers of so many who had to lie to obtain divorces--the widespread perjury produced by fault divorce laws became not a basis for criminal prosecution but a leading argument to junk the system in favor of no-fault.

Even taking an administrative view of perjury provides no conclusive protection to President Clinton. A senator might decide to subject a president to higher liability for the punishment of conduct than an ordinary citizen, even when the conduct did not involve the exercise of presidential authority. But if our appropriate standard is the criminal justice response to an ordinary citizen's denial of extramarital sex in a civil deposition, a perjury prosecution would be less likely than being struck by lightning.

This was, of course, never a case for a normal prosecutor. There is much in the law and structure of the independent counsel post that encourages the literal enforcement policies of a moral policeman. The ordinary prosecutor has a community full of law violators while a special prosecutor has a single target. The nature of an ordinary criminal prosecutor's job encourages the exercise of discretion about priorities for prosecutorial effort. The special prosecutor can either proceed against a single-target or fold his tent. All the incentives in this single target job push its occupant toward becoming an adversary who will seize upon the literal language of any criminal law that promises to deliver the hunter from returning home without any prey.

This post was originally published here: What Is the Aim of Criminal Law?