Third-Party Interests in Criminal Law
Brown, Darryl K., Texas Law Review
The U.S. Department of Justice will sometimes decline to prosecute health care fraud if the conviction would diminish health care resources for patients and communities. Environmental crimes may go unprosecuted if third parties would be comparably harmed by the sanction. More generally, prosecutors might not charge corporations if conviction would leave the firm's employees without jobs. When convictions do occur, judges may reduce sentences (sometimes at the request of prosecutors, sometimes not) to avoid hardship on third parties such as employees of a small business or family members of an individual defendant.
Should the state reduce an offender's sentence, or forgo prosecution altogether, if criminal punishment would harm third parties? Traditional criminal law theories say "no"; none of the dominant theories make a place for the collateral consequences visited upon others when an offender is punished. We define offenses, and the necessity for prosecution, by the culpability and harm caused by criminal conduct, and set the overarching goals of criminal law-primarily deterrence, retribution, or some mixture of the two-as guides for when and how to punish. Those concerns guide criminal law administration. Despite that commitment, the practice of criminal law sometimes explicitly accommodates concerns for collateral consequences to third parties, citing such harm as reason to decline prosecution or not to impose severe punishments such as incarceration.
This Article explores the implications of this overlooked practice. As a practical matter, concern for collateral harms from criminal sanctions poses difficult problems of defining which third-party interests are significant enough to justify not punishing culpable offenders who have caused harm. Such concern also leads to treating like cases differently. The study of thirdparty effects yields a description of how criminal justice process actually works-and how it departs from theoretical models. We accommodate thirdparty interests by moderating prosecution and punishment, but we do so haphazardly and unevenly across the spectrum of criminal practice. From this view, I offer a qualified normative defense of the practice and sketch the means by which we might better execute this concern for collateral consequences of punishment.
Conceptually, the overt mitigation of collateral consequences calls into question both the descriptive accuracy and the prescriptive utility of both dominant theories of criminal law-retributivism and deterrence-oriented utilitarianism. It does so, I argue, because accommodations to third-party interests are not unjustified lapses in judgment by prosecutors and judges; they are not violations of a model practitioners should be adhering to. Our practical (as opposed to theoretical) concern for third-party interests signals the necessity of criminal law paying attention to its broader social consequences. Third-party interests provide an additional, compelling basis for restricting the use of criminal law to fewer than all cases in which the state has the means to prosecute. (In the same way, a requirement of moral culpability constrains utilitarianism, and a strong commitment to deterrent effects constrains retributivism.) Mitigating third-party interests, in fact, is necessary to maintain the legitimacy of criminal law, even as conflicting commitments to distributive fairness, retributive justice, and crime prevention necessitate some punishment. A pure retributivist or deterrent model of criminal justice that ignores those costs would, in practice, undermine criminal law's legitimacy. Ironically, however, so would fully abandoning either of those commitments. This dynamic has grown in the last thirty years because of our dramatic increase in criminal punishment,' which increases third-party injuries as well. That conflict and the problems of sorting and weighing relevant third-party interests are the principal sources of difficulty for both theorizing and practicing criminal law in light of those interests. …