How to Define the Crime

Rethinking Criminal Law

by George P. Fletcher
Little, Brown, 898 pp., $18.50

George Fletcher has written a very important book which may receive less attention than it deserves. Most people are interested in crime and criminal trials but not in the criminal law. Exactly how someone was disemboweled yesterday is morbidly fascinating; that I may be mugged tomorrow is chilling. But the bounds of liability for conspiracy or the best way to formulate an insanity defense do not excite the public. This lack of attention to principles of liability and excuse is in part the negative side of the intense interest in constitutional issues of criminal procedure.

In the 1960s a busy (some would say hyperactive) Supreme Court called up every aspect of police and prosecutorial behavior for scrutiny, often condemning existing practices and setting new standards for the protection of suspects and defendants. This swift transformation of the guidelines for investigation and trial captured the mood of a society that was properly preoccupied with concepts of equality. A remarkable side effect was that criminal law practice in the United States has to a substantial extent become the practice of constitutional law. In American law schools the time devoted to the constitutional examination of the criminal process now exceeds that given to the criminal law itself.

Admirable and overdue as the reforms in criminal procedure were, the concentration on constitutional rights threatens to become singleminded. Lack of intellectual interest in questions of responsibility has led to a generally crude and inert criminal jurisprudence. Since the work of the American Law Institute in producing the Model Penal Code with its valuable Commentary in the 1950s, little important writing appeared in the United States on criminal law theory until Fletcher’s book.

This neglect is damaging, for American criminal law now stands in a critical place. While new statutes and proposed revisions expand federal jurisdiction, the pressure of prosecuting organized crime figures and powerful narcotics dealers has led to a dangerous looseness in the federal understanding of elements of liability. Some examples from the crime of conspiracy show how the federal courts have released a sprawling set of crime-expanding concepts.

Those who commit a crime by acting together will find themselves guilty not only of the completed crime but also of conspiracy—for which they may receive additional punishment. This is hard to justify. Those who conspire may be dangerous enough for the law to notice even if they have not yet carried out their plan. But it is much less clear that, having committed the crime, they merit an increment of punishment for having agreed to do it. Conspiracy breeds offenses even more magically for it may make one guilty of crimes one did not commit. The federal Pinkerton1 rule says that a conspirator is guilty of offenses committed by co-conspirators as long as they are foreseeable consequences of the agreement. So, as in the Pinkerton case, a conspirator already in jail may be liable for crimes committed by his colleagues after his imprisonment. In narcotics cases the spatial and temporal concepts of…

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