Abstract Risk and the Politics of the Criminal Law
Fissell, Brenner M., American Criminal Law Review
Much of the criminal law contains what theorists call "abstract endangerment" statutes--laws that punish not actual, but hypothetical, creation of risk. For example, consider the criminalization of underage alcohol possession, ostensibly targeting the risk of irresponsible overconsumption: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly "abstract": many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws mainly emphasize the deficiencies of individuals in assessing their own risk. What these defenses implicitly assume, though, is that the entity the individual must defer to--the legislature--is itself superior at risk assessment. This Article attacks this supposition, and discusses the problematic features of legislative deliberation regarding risk in the criminal law. Many extraneous considerations often enter in, and certain inherent features of these bodies make them especially problematic. Defenders of abstract endangerment statutes, then, should not simply assume that the legislature is epistemically superior to the individual, and they bear a greater justificatory burden than they have satisfied thus far.
A large swath of the contemporary criminal law consists of what are called "abstract endangerment" statutes--laws that punish not the creation of risk, but the potential creation of risk. These statutes prohibit certain conduct that, when undertaken, is usually dangerous to oneself or others in a certain way. One example is the speed limit: in many cases a violation creates risk of harm, but in many it is entirely safe. The primary intuitive and theoretical problem with these statutes, then, is their overinclusion.
Various eminent scholars have wrestled with these laws--how can they be justified if all crimes must somehow be seen as wrongful, yet many violations of these kinds of statutes will create no risk of harm at all? (1) For deterrence theorists this is easy: these rules reduce risk on the whole, and therefore violations thwart the achievement of the greater good. For retributivists, overinclusion is defended because even those who create no risk of harm still act in a blameworthy manner--they are arrogant or selfish. Wrongfulness is thus established by both theories. These scholarly defenses focus on the possible deficiencies of an individual's ability to assess risk in his own case, and the resultant problems and their implications. (2) For various reasons, it is argued that it is better to entrust judgments about riskiness to the legislature. (3)
Implicit in both the retributive and the deterrent defenses of abstract endangerment, though, is an assumption that the subject of comparison with the faulty individual--the legislature--is itself superior, and will have fewer or less egregious deficiencies. However, theoretical responses to these statutes have failed to investigate this proposition, and have uncritically accepted that the legislature will be better at assessing risks. This Article is an attempt to address this issue, and it refuses to accept that legislative wisdom can be safely assumed. In fact, further inquiry shows that many of the same deficiencies that taint individual risk assessments are also present (and are often more aggravated) when a collective political body makes risk determinations.
Because epistemic deficiency is similarly a problem with respect to legislative risk assessments in the criminal law, the theoretical defenses of abstract endangerment statutes require far more support for their implicit claims. Deference to the legislature (in the form of an abstract endangerment statute) based upon any supposedly superior knowledge cannot simply be assumed. Rather, the legislature's superiority at risk assessment must be demonstrated in the specific case. …