Rethinking criminal responsibility for poor offenders: choice, monstrosity, and the logic of practice.

• Author: Sylvestre, Marie-Eve
• Position: Canada

In theory and in discourse, Canadian criminal law insists on the importance of free will, choice, and difference in order to hold someone criminally responsible and to legitimize punishment. Yet legal doctrine is constructed and applied in a very technical and descriptive manner that usually casts aside practical considerations, proceeds on utilitarian grounds, and simplifies what it means to be free, rational, and different. Recent proposais to strengthen or to eliminate the retributive model (e.g., to include in the analysis considerations such as socio-economic disparities and power differential or to definitely shift the discourse toward utilitarian considerations) still rely on assumptions about agency, liberty, and equality that are grounded in contested sociological evidence. As a result, their capacity to promote concrete reform is limited.

In this paper, the author draws from the works of Bourdieu and other praxis theorists and argues that their research could shed new light on our understanding of choice and difference--two essential components in the assessment of responsibility. The author concludes by showing what criminal law theory could look like, especially in the case of poor offenders, if reformers were to consider such sociological evidence.

Sur les plans theorique et discursif, les notions de libre arbitre, de choix et de difference constituent les fondements de la theorie de la responsabilite penale et de la legitimite du pouvoir de punir en droit canadien. Or, dans les faits, la doctrine juridique est construite et appliquee de maniere essentiellement technique et descriptive: elle fait abstraction des considerations pratiques, renvoie a des arguments utilitaires et s'appuie sur une vision reductrice de la liberte, de la rationalite et de la difference. Certaines propositions ont recemment ete mises de l'avant afm de renforcer le modele retributiviste (par exemple en incluant dans l'analyse des considerations telles que les disparites sociales et economiques ainsi que les rapports de pouvoir), ou encore de le remplacer par un modele utilitariste. Cependant, ces propositions reposent sur une conception de la rationalite, de la liberte et de l'egalite qui est largement contestee sur le plan sociologique. Leur potentiel de reforme est limite.

Dans cet article, l'auteure se fonde sur l'oeuvre de Bourdieu, ainsi que sur celle d'autres theoriciens de la pratique, afin de reconsiderer le sens des notions de choix et de difference, deux composantes essentielles de la responsabilite. Elle propose en conclusion certaines modifications a la theorie penale afin de tenir compte de ces donnees sociologiques et demontre quel serait l'impact de celles-ci en ce qui concerne les contrevenants les plus pauvres.

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Introduction I. Current Proposais to Strengthen Choice and Difference A. Attempts to Reconnect Moral Culpability with Its Philosophical Foundations within the LIberal Model B. The Empirical Models of Law and Economics II. Turning to Sociological Analysis: Embracing Complexity A. The Importance and Complexity of Choice B. Understanding Monstrosity C. Reconciling the Dichotomies: Practice Theory D. Practice Theory and Criminal Responsibility for Poor Offenders 1. The Descriptive and Normative Power of Practice Theory 2. Toward a Practice Theory of Responsibility Conclusion Introduction

In theory and in discourse, criminal law theory insists on the importance of free will, choice, and marked difference in order to hold someone criminally responsible and to legitimize punishment. On the one hand, the idea that an offender freely chose to commit a crime--that she could have done things differently, but yet made the rational decision to commit an offence and thus deserves to be punished and repressed--appears politically and morally convincing to retributivists for whom choice, directly connected to desert, is a key concept and a moral standard. (1) Choice is also central to the utilitarian tradition both at the descriptive and normative levels. Utilitarians suggest that human behaviour is the result of rational choices that maximize pleasure while minimizing pain, and argue that state action should function in a similar manner whenever pursuing general well-being. (2)

On the other hand, the idea of difference, and indeed of extreme difference or "monstrosity", (3) also serves to legitimize exclusion and punishment. Offenders are often perceived as falling into a separate category of human beings--if they are humans at all--based on their behaviour, their living conditions, or their appearance. The fact that they are different from the rest of the population ("us") makes it appropriate and acceptable to treat them differently and makes repression and punishment easier. In moral philosophy, we find references to the monstrosity narrative in the utilitarian tradition, particularly in incapacitation theory, which seeks to prevent future harm through the incarceration, isolation, and control of dangerous offenders.

Choice, free will, and difference are also key concepts in criminal law doctrine. They are part of the notion of mens rea, while also being integral to the concepts of actus reus, capacity, and voluntariness. Commentators continue to insist on the importance of preserving the mens rea doctrine according to which no one should be held criminally responsible without personal fautt, so as to ensure freedom of choice and respect for human autonomy. (4) The Supreme Court of Canada has repeatedly proclaimed the sacrosanct character of mens rea, affirmed its intimate connection to choice, (5) and recognized its constitutional status. (6) A number of defences are also recognized under the constitutional principle of moral involuntariness to refute the presumption according to which whoever commits an act is thought to have really chosen to do so. (7) Marked difference (akin to the idea of monstrosity) has been discursively cast as a deviation from the standard of the reasonable person against which an accused is sometimes judged at the culpability stage of the proceedings. (8)

Yet, there is an important paradox in the Canadian criminal justice system. Despite the rhetorical importance of free will, choice, and difference, criminal law doctrine does not make much of these ideas when assessing the offender's fault in the context of a criminal trial. Key concepts such as mens rea and actus reus are constructed and applied in a very technical and descriptive manner that often casts aside practical considerations, proceeds on utilitarian grounds, and ignores or simplifies what it really means to be free, rational, and different in a grossly unequal and pseudo-meritocratic society. Offenders are thus convicted, irrespective of their differences and of the impact of socio-economic and political constraints on their choosing to commit crimes. Politically and economically neutral convictions are particularly important in the case of poor offenders who are often the "regular clientele" of the criminal justice system.

In this paper, I want to challenge the conventional ways in which we have constructed fault and difference in the Canadian criminal justice system, and suggest an alternate conception of these notions that is both grounded in empirical evidence, and fully takes into account the impact of structural constraints on individual liberty, equality, and rationality. In Part I, I first examine the suggestions made in recent years to strengthen the liberal model of criminal responsibility and to increase "the ability of legal categories to reflect the social context." (9) Scholars and critics have tried with relative success to shift the emphasis of legal analysis from mens rea to other aspects of criminal liability, such as imputability (including causation and moral involuntariness), so as to ensure some form of moral philosophical content within inquiries into culpability. (10) Some scholars have .suggested creating new defences to consider socio-economic disparities and racial discrimination, (11) while others have suggested changing the theoretical foundations of defences from the concept of moral involuntariness to moral blameworthiness, to allow for moral inquiry. (12) Recognizing the potential for such reconceptualizations, I argue that they ultimately fail to propose a successful model to assess responsibility because they rely on a particular conception of liberty, equality, rationality, and difference that is grounded on questionable sociological evidence and does hot account for the complexities of social life or degrees of responsibility.

Law and economics scholars have suggested turning to the economic model in an attempt to ground criminal law theory in empirical evidence. Writing in the utilitarian tradition, they propose to relegate moral inquiries to culpability and to focus on the preventive power of criminal law. In doing so, they claim to present a more sound and comprehensive approach to the study of criminal behaviour. (13) New generations of law and economics scholars, including those from behavioural law and economics, (14) have also tried to account for individual variations while remaining within the ambit of the economic model. I argue that their proposals should ultimately fail because they rely on false assumptions about human beings and their capacity to make rational choices. Moreover, their use of empirical evidence is quite limited and does not provide a full account of individual behaviour.

In Part II, I turn to sociological evidence to re-examine the notions of fault and difference--two essential components in the assessment of responsibility. In contrast with the more philosophical approach followed by most liberal scholars or the economic approach, sociologists and anthropologists rely on well-supported empirical evidence about human action, agency, and the role of social structures. I draw from the work of French sociologist Pierre Bourdieu (15)...