"A Theory of Criminal Victimization"

The title of this post is the title of this intriguing new paper by Joshua Kleinfeld now available via SSRN. Here is the abstract:

Criminal punishment is systematically harsher, given a fixed crime, where victims are vulnerable or innocent, and systematically less harsh where victims are powerful or culpable.  We make a distinction between one gangster attacking another and a gangster attacking a bystander (though the assaults might be formally identical), or between selling drugs to an adult and selling them to a child (though the penal code might treat the two as the same).  Yet this pattern in blame and punishment has been overlooked.  Criminal scholarship and moral philosophy have offered no theory by which to explain it.  And, lacking a theory, the pattern itself has been missed or misunderstood empirically.

This Article sets forth the concept of “victimization” — the idea that the moral status of a wrongful act turns in part on the degree to which the wrong’s victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence.  It shows the concept to be implicit in both the doctrine and practice of criminal law.  And it argues normatively that victimization is at the same time essential to criminal justice and peculiarly prone to illiberal distortions, and should therefore be at once preserved and constrained.

A concluding section reflects methodologically on the paper’s approach to moral philosophy in law — an approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry, but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.