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October 15, 2008

The offense grading problem in another setting

In light of our discussion of different grades of homicide (and in the wake of our Joe Wolvie hypo from a few weeks ago), folks might be interested in this new article by a colleague from the journal Criminal Law and Philosophy entitled "Grading Arson."  Here is the abstract of the article:

Criminalizing arson is both easy and hard.  On the substantive merits, the conduct of damaging property by fire uncontroversially warrants criminal sanction. Indeed, punishment for such conduct is overdetermined, as the conduct threatens multiple harms of concern to the criminal law: both damage to property and injury to people.  Yet the same multiplicity of harms or threats that makes it easy to criminalize "arson" (in the sense of deciding to proscribe the underlying behavior) also makes it hard to criminalize "arson" (in the sense of formulating the offense(s) that will address that behavior).

This article asks whether adopting one or more arson offenses is the best way for criminal law to address the conduct in question, or whether that conduct is more properly conceptualized, criminalized, and punished as multiple distinct offenses.

The article is pretty dense reading, and perhaps it is not a good use of a scarce time to read the article in full.  But this concluding sentence from the article has a message very pertinent to our homicide discussions: "Categories or formulations inherited from prior generations may even cause more harm than good if they become reified to the extent that our conceptualizations of crime become inseparable from the vernacular description or particular conduct the existing categories happen to describe, obscuring the ability to recognize each category's underlying purpose and function." 

If you can understand this final sentence from the article, you are already ahead of the game as we head into a review of the history and modern doctrines of grading homicide.

October 15, 2008 in Recommended scholarship | Permalink


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So first of all, I must admit, I looked up 'reified,' & then this sentence made a little more sense, although there's still much room for clarification up there in my brain. I've actually been thinking, prior to reading this, that it seems like we, or at least I, become too obsessed with taking a specific crime and then immediately finding its corresponding 'drop box' so that I can feel all nice & tidy & cozy, knowing that I have, thus, properly 'defined' a crime & what punishment it deserves. What's lost in doing this, in my humble opinion, is that we lose sight of why we're punishing in the first place & why punishment X should be punished a certain way & punishment Y another. I think we must always remain cognizant of why certain proscriptions are necessary, why specific categories are helpful, & ultimately why we are deciding that in whatever particular case we're talking about, we think the 'hammer' should be brought down on that person based upon their actions. Only when we remain cognizant of these 'underlying purposes & functions' of each category will certain linguistic formulations matter...wow, that was probably a lot of inherent rambling. If so, my bad.

Posted by: Josh | Oct 18, 2008 12:12:12 AM

Reified is one of those words they teach new law professors to help us sound extra smart. Others include intersectionality and didactic and pedagogy.

As for rambling, this is exactly the forum for earning class participation points for being a gambler and a rambler.

Posted by: Doug B. | Oct 20, 2008 7:49:51 AM

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