Criminal Law’s “Mediating Rules”: Balancing, Harmonization, or Accident?

Before offering a few thoughts about Professors Richard Bierschbach and Alex Stein’s “Mediating Rules in Criminal Law,” I would like to highlight just two of the several significant contributions it makes to the criminal law literature. First, it both spotlights and combats the tendency of theoretical work in criminal law, particularly work in the retributivist camp, to focus on certain criminal justice issues at the expense of others. Such work typically orients itself toward (admittedly crucial) questions about the proper justification, scope, and amount of punishment in the abstract, while giving significantly less consideration to the various institutional and procedural aspects of any concrete system of imposing such punishment. Even if the substantive punishment rules were perfect, their implementation in any real world scheme would involve compromises, if not outright distortions. Too little attention is paid to the translation of principle into practice, and Bierschbach and Stein’s article is a welcome effort to bridge that gap.

Purposes and Effects in Criminal Law

In their provocative Article “Mediating Rules in Criminal Law,” Professors Richard Bierschbach and Alex Stein tell us that rules of criminal liability and rules of evidence, often pushing in opposing directions, collectively determine the quantum and mix of deterrence and retribution that a given punishment practice delivers. An example could be the excuse defense of duress. This doctrine is designed to prevent punishment of some actors who are not morally at fault for their behavior (or at least comparatively less at fault than others) because forces not of their own making (and about which we have some sympathy) drive them to commit socially harmful acts. The doctrine might undermine deterrence by granting actors permission, past a point, to abandon efforts to resist offending. However, the evidentiary rule in most jurisdictions that requires the defendant to carry the burden of proving an excuse defense tilts matters somewhat back towards deterrence. Making the defendant prove duress filters out many of the weaker (and even fabricated) duress claims, which might arise in cases in which a defendant was perfectly capable of resisting pressure to violate. Bierschbach and Stein urge us to analyze many areas of criminal law doctrine with this methodology.

Their effort is an intriguing forward move in criminal law scholarship that seeks to remove barriers—perhaps of use to lawyers and law teachers—that have impeded full understanding of the system of social regulation and practices that produces punishment. In a variety of styles and methodologies, scholars have been opening our eyes to how classification-driven distinctions between substantive criminal law and criminal procedure, liability rules and evidentiary rules, law and social norms, and law and politics block us from clearly viewing the social practice of punishment.

As I worked with Bierschbach and Stein’s methodology, however, I became convinced that it is flawed. The approach requires us to force components of doctrine onto the authors’ deterrence-retribution ledger, yet, we can see as we are doing this that many of those components do not belong there. By the time we are done, we cannot escape the conclusion that the ledger itself is too wooden and simple to account accurately for the theoretical structure of a given locus of criminal law doctrines.

The Multifarious Politics of Capital Punishment: A Response to Smith

Steve Smith’s insightful account of the “politics of death” is organized into three broad points. First, he notes that the Supreme Court, in trying to regulate (and, briefly, to abolish) the death penalty, perversely reignited a pro-capital punishment politics that had been on the wane through the 1960s. Second, he describes how the political process—at least, since the 1970s—has made moderation on the death penalty infeasible, so that capital punishment policy grows ever harsher but rarely more moderate or restricted. Finally, he describes the Court’s new approach to capital punishment regulation. Instead of tinkering with mechanisms to guide jury and judge discretion in death sentencing and thereby bring some distributive justice to capital punishment implementation, the Court has turned to a two-pronged approach: restricting death eligibility under the Cruel and Unusual Punishment Clause and revitalizing capital defense representation under the Sixth Amendment counsel doctrine inaugurated in Strickland v. Washington.