Tort: The Liberal Alternative to the Criminal Law
While the influence of liberalism has made significant improvements in advancing justice and the rule of law, the criminal law, a profoundly illiberal institution, is inherently unjust and illiberal, and continues to undermine the liberal conceptions of justice and the rule of law. From a practical perspective, the criminal law, and the criminal justice system, have been a failure. Serious crimes involving physical harm to individuals routinely go unsolved by public law enforcement, and the statistics are even more dismal when it comes to property crimes. The lack of effectiveness in public law enforcement harms individuals throughout society, and is unsurprisingly most impactful among the poorest among us. Despite their terrible record regarding vindicating harms against persons and property, public law enforcement agencies focus significant resources on enforcement against victimless crimes such as drug prohibition, which reduce liberty and distract from preventing and solving serious crimes. Further threatening liberty is the fact that in the United States, legislatures and regulatory agencies have vastly expanded the scope of the criminal law to the point that there are now an uncountable number of federal criminal offenses in addition to an expansive body of state criminal offenses. Many of these statutory or regulatory offenses are for crimes where there is no victim, and many impose criminal penalties under strict liability, under the theory of so-called “public welfare offenses.” This gives public authorities vast amounts of power to violate the rights of individuals who, under the liberal conception of justice, are completely innocent of any wrongdoing.
Additionally, the criminal system has created a massive carceral state that denies justice to victims, unjustly punishes those convicted of victimless crimes, and places legitimate wrongdoers, who are often non-violent or at minimal risk of recidivism, into a position where they both cannot pay restitution to their victims and cannot properly reintegrate into society. In the 21st Century, the United States “has by far the highest incarceration rate in the world.” Many individuals incarcerated in federal and state prisons today are serving prison sentences for victimless crimes, with “1 in 5 incarcerated people … locked up for a drug offense,” and many others are incarcerated for minor offenses that do not justify imprisonment. In the case of those who have done legitimate harm to the persons or property of another, but not to the extent to justify ongoing incapacitation, the current system both makes it difficult or impossible for these offenders to pay restitution to their victims, and prevents them from properly reintegrating into civil society, first through unproductive prison time, and then through an ongoing, potentially lifelong stigma of being a “convict” or “felon” that makes it difficult or sometimes impossible to find meaningful, productive work and otherwise participate in civil society.
The current criminal justice system is unjust by design, and fundamentally undermines the concept of the adversarial system that is central to the liberal conception of the rule of law. In a recent article, Clark Neily identified “three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy … (1) unconstitutional overcriminalization; (2) point-and-convict adjudication; and (3) near-zero accountability for police and prosecutors.” Today, public prosecutors at the local, state, and federal level routinely coerce plea bargains from criminal defendants, innocent or not, through coercive tactics such as “pretrial detention, charge-stacking, mandatory minimums, the notorious ‘trial penalty,’ and even gratuitous threats to indict a recalcitrant defendant’s family members.” These coercive tactics lead innocent people to plead guilty, and both innocent and guilty defendants to forgo their constitutional right to trial by jury. These fundamentally unjust features of today’s criminal justice system are just that, “features,” not “bugs” to be reformed out of the system. By giving the state the power to prosecute alleged “offenses” against it, whether private harms that should be addressed through tort, or victimless and regulatory “harms” that no free society should tolerate coercion being used to prevent, the criminal law creates an ideal mechanism for the endless expansion of state power to regulate and control the lives of the people while undermining their basic natural rights.
Additionally, the criminal system almost entirely ignores the victim, instead focusing on protecting the interests and perceived legitimacy of the state. As William F. McDonald notes in his essay The Role of the Victim in America, “[i]n the development of criminal justice in America, the victim has gone from central to peripheral actor in the system, from a prime beneficiary to an also-ran.” As a result, the criminal system cares little if at all for obtaining justice for the victim 18, and “[t]he interests of the state, the defendant, and the bureaucracy … dominate the criminal justice process in theory and in reality.” The tort system, by contrast, focuses on the victim, with the state playing the role of a neutral adjudicator in the adversarial
dispute between the plaintiff-victim and the defendant.
From a normative perspective, the criminal law is simply incompatible with the liberal conceptions of justice and the rule of law. Liberalism is based in the sanctity and sovereignty of the individual, and a liberal justice system must be focused on vindicating the property rights of those individuals when they are wronged. Crimes, on the other hand, are offenses against “society” as a whole, with criminal suits brought in the name of “the people” or “the state” or “the commonwealth.” The idea that a harm to an individual or their property rights is best viewed as a harm to “society” as a whole is incompatible with liberalism, where justice should be individual, and individual plaintiffs should be free to seek justice for wrongs against themselves and their property. Therefore, I will argue that in order to achieve the liberal conception of justice and the rule of law, the criminal law should be abolished and replaced with an “enlarged” common law of torts. In this paper, I will present my argument in the context of a liberal minimal state that retains a hierarchical court system. In the long run, I do however prefer Professor Randy Barnett’s vision of a fully decentralized,
polycentric legal order, but the discussion of the merits of such a system over a minimal hierarchical state are beyond the scope of this note.
