"Unpunishable Criminals"

The title of this post is the title of this notable new article by Mihailis Diamantis now available via SSRN.  Here is its abstract:

Criminal law strives to do justice. It aims to give wrongdoers the punishment they deserve and the punishment that will. But sometimes justice is out of reach.  Many criminals will never face punishment because circumstance or the law itself immunizes them from sanction.

This Article is the first to conceptualize the large and varied set of what it calls “unpunishable criminals.”  They include recipients of presidential pardons, deceased criminals, diplomats, fugitives, and those whose crimes occurred long ago, among several others.  Does criminal law’s inability to punish these criminals mean that it must wash its hands of them and their victims entirely?

Presently, the answer seems to be “yes.”  But this Article argues that criminal law can do better—it should permit the prosecution of unpunishable criminals.  Trial is an independent source of value. It uncovers truth, allows victims to tell their own stories, and condemns wrongdoing.  With appropriate procedural safeguards, prosecution can advance these values even when punishment cannot follow.