Chronic Temptation, Reasonable Firmness, and the Criminal Law

Oxford Journal of Legal Studies, available at doi: 10.1093/ojls/gqt015, print version forthcoming

Richard L. Lippke Department of Criminal Justice Indiana University Bloomington, IN 47405 USA rllippke@indiana.edu

Electronic copy available at: http://ssrn.com/abstract=2333248

2 Chronic Temptation, Reasonable Firmness, and the Criminal Law*

Abstract: The criminal law requires citizens to demonstrate reasonable firmness in the face of temptations to violate its provisions. But what if individuals repeatedly face powerful temptations to offend, are not responsible for being in such predicaments, cannot escape them, and cannot alter or expunge their desires because they count as urgent on any plausible account of a decent human life? Should the criminal law make some sort of allowance for the chronically tempted? I argue that it should, because individuals in such predicaments will have to exhibit exemplary if not extraordinary self-control. Intuitively, such self-control is more than the criminal law can reasonably demand of individuals. Also, there is empirical evidence that repeated acts of self-control wear down individuals. Numerous objections to the position I defend are addressed and its implications for the criminal law are briefly explored.

Key Words: Temptation, Reasonable Firmness, Duress, Excuse, Criminal Law, Self-Control

Individuals from all walks of life encounter pressures and temptations, sometimes quite strong

ones, to commit criminal offenses. Yet such pressures and temptations rarely, if ever, excuse them from having to endure the legal consequences of their criminal actions. Only in rare circumstances, such as when individuals act under necessity or duress, does the criminal law offer them any hope of avoiding punishment. Otherwise, most adults (and some juveniles) are presumed capable of understanding and responding to the prudential and moral reasons against offending. Though the criminal law does not expect or require individuals to be saintly, it does expect and require them to exhibit reasonable firmness in the face of temptations to commit crimes.1

*I am grateful to Marcia Baron for helpful comments on an earlier draft of this paper. An earlier version of this paper was presented to the philosophy department at Vanderbilt University. I wish to thank those in attendance for their many useful comments and suggestions.

Electronic copy available at: http://ssrn.com/abstract=2333248

However, what if individuals face not occasional or temporary temptations to offend but chronic ones, in the sense that the temptations are strong, repeated, frequent, and inescapable? Perhaps none of these temptations puts the individuals in question under the kinds of pressures to offend that individuals who confront dire choices (as in circumstances of necessity) or threats (as in standard cases of duress) encounter. Nonetheless, it is possible to imagine chronic temptation scenarios in which individuals must forego the satisfaction of basic needs or non-trivial desires if they are to abide by the strictures of the criminal law, scenarios in which they will have to restrain themselves from wrongdoing over and over again with little prospect of satisfying the needs or desires that incline them toward it. It might be claimed that the criminal law is appropriately unforgiving with respect to the chronically tempted; it quite reasonably insists that they remain firm in the face of their difficult life circumstances. But is there ever a point at which it plausibly could be claimed that such individuals are being asked to exhibit self-control that is extraordinary and thus beyond what can be reasonably required of them? I believe that there is and that individuals who are chronically tempted, largely through no fault of their own, should be partially excused by the criminal law. Defending that claim and exploring its implications is the main focus of the discussion that follows. In the first section, I elaborate the kind of chronic temptation structure with which I will be concerned and contrast it with the more familiar and widely accepted excusing condition of duress. Chronic temptation is different from duress. The dilemmas the chronically tempted encounter are not as acute as those of persons under duress, and no one is
1

See Joshua Dressler, Reflections on Excusing Wrongdoers: Moral Theory, New Excuses, and the Model Penal Code (1987-88) 19 Rutgers L J 671, 711. See also Model Penal Code 1985 2.09 (1)-(2).

threatening the chronically tempted with death or grave bodily injury if they do not commit crimes. Still, some of the chronically tempted will have to choose between (legal or moral) wrongdoing and foregoing the satisfaction of their or loved ones basic needs. And they will confront these difficult choices over and over again with little hope of escaping the anguish and despair that accompany them. Moreover, some of the chronically tempted will have done little to put themselves in the tempting circumstances. Chronic temptation structures are characterized in ways to maximally reveal what I take to be the problem they raise, and illustrated with an extreme case of chronic temptation. This strategy on my part naturally leads to questions about whether and to what extent real-world situations are chronically tempting in comparable ways. Though I believe that some of them are, I do not attempt to establish this in detail.2 Doing so would require careful investigation and analysis of candidate chronic temptation scenarios, projects best left for other occasions. My aim in this discussion is to outline in the abstract, as it were, the problem that I believe chronic temptation poses for the criminal law. In the second section, I explain the grounds for believing that repeated acts of selfcontrol are difficult. Part of the explanation is intuitive: If duress fully excuses because even persons of reasonable firmness might succumb to strong pressure to offend when that pressure is unjustifiably imposed by other agents, then closely analogous pressures to offend, if encountered over and over again, should challenge persons of reasonable firmness. I also draw
2

I have analyzed real-life chronic temptation structures in some detail elsewhere. See Richard L. Lippke, Social Deprivation as Tempting Fate [2011] 5 Criminal Law & Philosophy 277 and Why (Sex) Offending is Different [2011] 30 Criminal Justice Ethics 151.

on recent empirical studies of self-control. Those studies confirm the intuitive judgment that having to exercise self-control on an ongoing basis is difficult. True, individuals can attempt to arrange things so that they do not confront repeated temptations and so have to exercise selfrestraint. But my focus is on chronic temptation structures that are largely inescapable. Even with respect to such structures, individuals can enhance their self-control in various ways and some might become exceptionally good at exhibiting it. One of the questions raised is whether the criminal law can reasonably require such excellence in self-control. I suggest that the person of reasonable firmness standard has generally been conceived for individuals who face more ordinary kinds of temptations and pressures to offend, and thus not for individuals who face chronic temptations to do so. In the third section, I raise and respond to various objections to the position I defend. I distinguish the problem chronic temptation poses from other problems discussed in the literature. I also consider the important objection that the chronically tempted are fully responsible for any crimes they commit because they could refrain from offending if threatened with immediate arrest. In the concluding section, I consider briefly the practical implications of my account. I eschew one size fits all responses to the problem posed by the kinds of chronic temptation structures with which I am concerned. Much depends on the extent to which real-life temptation structures are truly chronic, as well as the reasons agents have for offending and against doing so. The best solution, if it is feasible, will be to modify the chronic temptation structures that foist on individuals repeated, difficult choices.

1. The Chronic Temptation Structures That Should Trouble Us

The temptation to engage in wrongdoing of some kind is familiar to all of us. Pulling us in one direction are desires, and sometimes quite strong ones, for the goods that wrongdoing would secure for us. Pulling us in the other direction are the moral or prudential reasons against acting on those desires, reasons the strength of which depends on how serious is the wrongdoing in which we would have to engage to satisfy our desires or the negative consequences we might face if held accountable for doing so. It is perfectly reasonable for the criminal law to enforce standards that require us to resist our impulses, and to thereby act in ways consistent with showing at least minimal concern for the significant interests of our fellow citizens.3 Quite often our interests (or those of our loved ones and friends) can be advanced in ways other than by offending and, if so, then the criminal law provides us with incentives to pursue those other means. But what if individuals find themselves in circumstances, not of their own choosing, in which their significant interests (or those of others about whom they care deeply) will be significantly set back if they refrain from wrongdoing and there is little hope of advancing those interests through other means? Suppose also that the self-restraint required of them is

Here, I draw on Antony Duffs account according to which persons are culpable under the criminal law if they show unjustified indifference to the interests of others. See R. A. Duff, Intention, Agency, and Criminal Liability: Philosophy of Action and the Criminal Law (Basil Blackwell 1990). See also Jeremy Horder, Gross Negligence and Criminal Liability [1997] 47 U. Toronto L J 495, and Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (OUP 2003), 257-73.

unstinting, or nearly so. The individuals in question cannot extricate themselves from the tempting circumstances, perhaps because others have some interest in keeping them there or little interest in helping them escape. Such individuals will be chronically tempted to offend in ways and to a degree that, I believe, poses a challenge to our thinking about the criminal law. The chronic temptation structures with which I am concerned have the following features:

1) The strong desires that tempt individuals to offend are generated by basic needs or by interests the realization of which are significant in almost any plausible conception of a decent human life. 2) Individuals confront frequent opportunities to satisfy the relevant strong desires, though doing so would require them to engage in wrongdoing of some kind. 3) There is relatively short time-elapse between the opportunities to satisfy the relevant strong desires through wrongdoing. 4) Alternative means for satisfying the strong desires, ones not involving wrongdoing, do not currently exist, are unlikely to prove efficacious, or will exact high moral costs of the agent. 5) The prospects for future satisfaction of the desires in question are dim, at least in the short to intermediate term. 6) Substantial lack of responsibility on the part of the tempted individuals for the predicament they find themselves in.

7) The absence of viable measures to reduce the strength of the tempting desires or the frequency of their occurrence.

Some of the items on this list are fairly self-explanatory, but others are not. The first condition aims at capturing the difference between desires that involve the appropriate valuation of goods and ones that do not.4 Individuals can develop strong desires for things that have relatively insignificant value. But the chronic temptation scenarios on which I want to focus are ones in which the desires that prompt wrongdoing have non-trivial goods as their objects. It is one thing if individuals become obsessive about expensive shoes or watches, and are thereby tempted to offend in order to acquire them. Such desires do not concern goods integral to any plausible conception of the good or minimally decent human life and there are things individuals can do to reduce their intensity. It is altogether different if individuals lack adequate food, clothing, or shelter, and are therefore tempted to commit crimes to acquire them, or if they lack social status and so understandably feel devalued or demeaned in ways that successful offending might help to ameliorate. Obviously, there is room for debate about what goods constitutes basic needs and what goods appropriately engender desires the

The classic recent discussion of the difference between mere desires and desires the objects of which have substantial value is T. M. Scanlons Preference and Urgency [1975] 72 Journal of Philosophy 655.

satisfaction of which are conditions of individuals having minimally decent lives.5 I shall not enter into these debates here. My point is simply that there will be some chronic temptation scenarios in which the desires that push individuals toward offending are ones that most all of us should recognize as having legitimately powerful motivational force. The frequency of the temptations to act illicitly to satisfy strong desires and the time-lapse between the opportunities to satisfy them will both be matters of degree. Other things being equal, the greater the frequency of the temptations and the shorter the time-lapse between them, the more we might suspect it will be difficult for individuals to exhibit self-restraint. Of course, if other efficacious means exist to satisfy the relevant desires and they can be utilized without too much effort by individuals, then that should ease the burdens of self-restraint. Yet the chronic temptation structures that are most troubling are ones in which such alternative, efficacious means do not exist or utilizing them would exact high moral costs of some kind. Similarly, we might suspect that self-restraint will be easier if individuals can tell themselves that satisfaction of the relevant desires is just around the corner that they need only exhibit self-restraint now or in the short-term and can count on satisfaction of the relevant desires in the near future. As the prospects for future satiety dim, however, we might expect the difficulty of self-control increases, other things being equal. Individuals might encounter repeated temptations to offend yet bear substantial responsibility for finding themselves in such predicaments. This is presumably true of drug
5

See, for instance, David Braybrooke, Meeting Needs (Princeton University Press 1987) and Philippe Van Parijs, Real Freedom for All: What (If Anything) Can Justify Capitalism? (Clarendon Press 1995).

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addicts or those whose lives revolve around forms of conspicuous consumption in which they cannot afford to indulge. These kinds of chronic temptation structures do not pose as significant difficulties for the criminal law as ones that individuals simply find themselves occupying though they have done little to bring the repetitive, difficult choices upon themselves. Still, whether or to what extent individuals have the ability to escape such temptation structures must also be taken into account. Scholars who write about self-control distinguish synchronic and diachronic forms of it.6 The former involve exercises of self-control in the tempting choice-situations individuals find themselves in. For instance, individuals who want to quit smoking might try to bolster their synchronic self-control by calling to mind vivid images of cancer-ridden lungs whenever they are tempted to smoke. Diachronic exercises of self-control involve efforts to modify wayward desires or arrange things so that individuals are less likely to find themselves in choice-situations that require self-control. For instance, those who have resolved to quit smoking might exercise diachronic self-control by taking drugs that reduce the urgency of the desire to smoke or by not keeping cigarettes around the house. Other things being equal, the absence of viable means of exercising diachronic forms of selfcontrol will increase the difficulty of resisting chronic temptations. There will be some circumstances in which individuals have little ability to employ measures designed to strategically avoid challenges to their self-control. Importantly, in analyzing the problematic kinds of chronic temptation structures, I assume that the agents who confront them have well-developed self-control, or what the law deems

See Edmund Henden, What is Self-Control? [2008] 21 Philosophical Psychology 69.

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reasonable firmness.7 It is apparent that in real life, individuals who encounter such structures do so with varying degrees of self-control and that deficiencies in self-control might be attributable to factors (e.g., youthfulness) over which individuals have little control. But to isolate and clarify the special problem that certain forms of chronic temptation pose for the criminal law, I assume that the individuals who have to deal with it are fairly accomplished at self-control. They are not, in other words, impulsive or weak-willed, but are capable of acting on the kinds of moral reasons that lie behind central features of the criminal law. Also, I set to one side the possibility that the individuals in question are alienated from the criminal law, in the sense that they regard its strictures as unjust and so are prepared to defy them. Again, in the real world, such individuals might exist and their reactions to chronic temptation will be predictably less-than-ideal.8 But the possibility that such agents exist and that their alienation is justified, or at least understandable, is a complication that I ignore for the purposes of this discussion. To make vivid the trying circumstances in which extreme versions of chronic temptation place individuals, consider a woman, named Sarah, who has been unjustly confined, with her young children, in a concentration camp as part of an ethnic cleansing campaign by the authorities. She has done nothing culpable to put herself or her children in the camp and her

Again, see the Model Penal Code 1985 2.09 (1)-(2). See the characterization of the estranged poor in Jennifer Hochschild, The Politics of the Estranged Poor [1991] 101 Ethics 560. See also Joshua Dresslers discussion of rotten social background in his Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits [1988-89] 62 S Cal L R 1331, 1377.

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prospects for imminent release are exceedingly dim. Meanwhile, the camp authorities, indifferent to the welfare of the occupants, feed them inadequately to sustain their needs. Sarah must not only suffer her own hunger but that of her young children, whose health is slowly foundering. Because she has been assigned to work for the camp commandant, Sarah has access to the stores of camp food several times a day. She could, at some considerable risk to herself, pilfer some of the foodenough to feed her children adequately and without the loss to the common store of food being detected. Several times a day, Sarah confronts the temptation to pilfer food. What stops her, for now, is the recognition that whatever she managed to pilfer would mean that less was available for other camp occupants and their children. Yet as she watches her children slowly dying, the temptation to do something to help them becomes increasingly urgent. Sarahs predicament is chronically tempting and undeniably so. Her desire to have her children survive is far from trivial and likely cannot be weakened, even by assiduous efforts on her part. Alternative means of satisfying her desires do not exist or if they do (for instance, she could offer to exchange sexual favors with a guard in order to acquire more food) are objectionably high in costs to her (and would not make the moral reasons against getting more than her share of the common store of food disappear). Thus, the specter of starvation haunts her and her children. Even if she is a person of more than reasonable firmness, the temptation to pilfer the food must be nearly unbearable. The question is whether we could fairly blame her if, after weeks or even months of resisting strong impulses to do so, she finally gave into them?

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If the temptations Sarah confronts are looked at in isolation, it might appear that, in each case, Sarah has the ability to restrain herself out of deference to the moral (and prudential) reasons she has against reducing the stockpile of food available for others. Moreover, it is doubtful that she could defend a decision to pilfer food by drawing on the traditional justifications or excuses of the criminal law, even assuming that these made sense or were available in her dire and unusual circumstances.9 Some might argue that her pilfering is justified or close to it. The agent-relative reasons she has to pilfer are quite strong and the agent-neutral reasons she has against it, in the form of prohibitions on actions that injure the welfare of others, seem less strong since the contribution her pilfering would make to the starvation of others would be minimal.10 But I doubt that the other camp occupants, and especially those with their own starving children, will view her pilfering as justified or innocent. They might plausibly claim that, though understandable, her pilfering hastens their own or their childrens demise. Excuse, or perhaps partial excuse, might be in order if Sarah pilfers and is subsequently called to account for it, but that is all.

Importantly, I am not suggesting that the rules and regulations of the camp are in any way analogous to the laws of a legitimate legal regime. Some might worry that this undermines the cogency of the analogy. However, my aim in elaborating it is solely to illustrate an extreme case of chronic temptation. Whether comparable forms of chronic temptation exist in legitimate legal regimes is a further issue.

10

See, for instance, Alan Wertheimer, Coercion (Princeton University Press 1987) 165-69.

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If excusing Sarahs pilfering seems the most promising way to go, it is important to note the ways in which her predicament diverges from standard cases of duress.11 Under the law of duress, individuals are entitled to have their crimes excused only if certain, rather stringent, conditions are satisfied. They must be threatened by other agents with death or grave bodily injury if they do not go ahead and commit some criminal offense. Lesser threats will not usually suffice. The grave threats must be imminent, in the sense that they will be carried out more or less immediately upon the refusal of the threatened individuals to commit the crimes they have been ordered to commit and there must not be any way for the threatened individuals to avoid the consequences of the threat. Further, those who wish to claim duress cannot have done anything to put themselves in the position of being subject to the relevant threats. This means that, among other things, they cannot have joined gangs or other criminal organizations that subsequently ordered them to commit crimes on pain of death or serious injury. Lastly, though more controversially, duress is not generally treated as an excuse for homicide. Sarahs predicament in some ways resembles that of agents under duress but in other ways does not. Like those who can plausibly claim duress, Sarah faces a cruel dilemma either pilfer some food, which is arguably a wrong and will be treated as an infraction by the authorities if they catch her at it, or desist and thus stand by helplessly as she and her children starve. And like those who can plausibly claim duress, she has not done anything to put herself in the predicament that now forces hard choices upon her. However, she is not being ordered to
11

For a useful accounts of the law of duress, see Joshua Dressler, Understanding Criminal Law (4th edn, LexisNexis 2006) 323-44 and Claire O. Finkelstein, Duress: A Philosophical Account of the Defense in Law [1995] 37 Ariz L R 251, 253.

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commit a wrong or a crime on pain of a direct threat of death or serious bodily injury, though threats of a different kind shape her predicament, in the sense that she cannot escape the dilemma she faces without incurring grave negative consequences.12 Also, the dilemma she faces is both less acute and more continuous, or at least repetitive. It is less acute because she or her children will not die imminently if she does not pilfer. There is more space for her to avoid or put off wrongdoing than there is for the typical subject of duress. She does not have to choose now to do so or desist from doing so. But Sarah confronts her dilemma again and again, and as time elapses, it will become more acute if the camp authorities do not relent and provide the occupants with more food. Also, though her pilfering is hardly tantamount to homicide, it would contribute marginally to the deaths of others. This might further complicate efforts to analogize Sarahs predicament to one of duress. In spite of these differences between Sarahs predicament and standard cases of duress, my task in the next section will be to argue that her predicament is difficult enough that, if she pilfers and is somehow called to account for it by other camp occupants (either before or after their liberation from the camp), she ought to be entitled to a partial excuse for her wrongdoing. The key to making out this argument involves examining the person of reasonable firmness, the normative model of an agent that the criminal law deems it plausible to hold over our heads and demand that we emulate. My sense is that the person of reasonable firmness in the criminal law is conceived for circumstances very different than Sarahs. Indeed, it might no t be too far off the mark to suggest that the standard has a distinctively middle class cast. It is
12

Sarahs predicament is analogous in certain respects with the intolerable prison conditions cases. On these, see Dressler (n 11) 332.

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conceived for individuals whose personal and social circumstances are relatively stable and secure but who occasionally have to resist temptations to offend, even strong temptations to do so for discrete periods of time. Though few people living in established legal orders face temptations as fierce and unrelenting as those of Sarah, some arguably do encounter chronic temptations that come close to hers. I have in mind individuals who occupy circumstances of severe social deprivation and individuals who have sexual desires (so-called paraphilias) on which they can never act without wronging other individuals.13 Such individuals will likely have strong, non-malleable and non-trivial desires that continually clash with the dictates of the criminal law, and few realistic prospects for satisfying those desires. Their only option, it seems, is to exercise self-restraint over and over again, seemingly without end. Even if it is assumed that all of them are persons of reasonable firmness, requiring them to exercise repeated selfcontrol or, alternatively, endure legal punishment if they fail to do so, ignores what we intuitively suspect about the rigors of exercising self-control and have some empirical evidence confirming. In the next section, I elaborate these claims.

13

The claim that the severely socially deprived have a claim for excuse or mitigation under the criminal law has been much discussed. See, among others, Richard Delgado, Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation? [1985] 3 Law & Inequality 9; Stephen J. Morse, Culpability and Control [1994] 142 U Penn L R 1587; Morse, Deprivation and Desert in William C. Heffernan and John Kleinig (eds), From Social Justice to Criminal Justice: Poverty and the Administration of Criminal Law (OUP 2000) 114; and Dressler (n 8) 1377-85.

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2. Reasonable Firmness and Limits to Self-Control

There is debate about why duress excuses and indeed about whether it is an excuse or a justification.14 Though I cannot argue for the position here, my view is that duress is most plausibly viewed as an excuse.15 Agents subject to duress face choices between their own selfpreservation, or that of loved ones, and the commission of crimes, and sometimes quite serious ones, that are genuinely hard.16 Because they do not have fair opportunities to abide by the law, they should not be subjected to punishment, with its characteristic censure and hard treatment.17 Even persons of reasonable firmness might, in duress-type circumstances, choose to engage in criminal wrongdoing. This is not to say that individuals subject to duress should not be punished because they are persons of reasonably firm character, or more generally, of good character.18 For even the decidedly less than good might act under duress and, assuming they satisfy the other relevant conditions, ought to be excused for having done so. The reasonable firmness standard functions hypothetically in the duress defense. We are not saying that those subject to duress are reasonably firm and therefore should be excused, only that even if they

14

For a useful summary of that debate, see Dressler (n 8) 1349-60. I believe that my argument would go through if duress is a justification rather than a defense, though some of the details would have to be changed.

15

16

See Morse, Deprivation and Desert (n 13) 142. See Dressler (n 11) 328. For the argument that duress does not excuse because of the coerced agents good character, see Dressler (n 8)1362-63.

17

18

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were persons of this kind, they might not be able to resist the temptation to commit crimes. The criminal law can demand only so much of us. It can insist that we be resolute about abiding by its strictures up to a point. Perhaps persons of exemplary firmness would refuse to engage in wrongdoing when subject to duress. But the criminal law does not expect us to be persons of such exalted character and ought not punish us if we act from pressures that only such individuals could resist. Surprisingly, the reasonable firmness standard seems more often cited by legal scholars than carefully explained and analyzed. In particular, whether it is the same as the muchdiscussed reasonable person standard, or somewhat different from it, is unclear. In many respects, they appear similar, though there seems an additional volitional element to reasonable firmness. The person of reasonable firmness must not only be able to apprehend what care and concern for her fellow citizens requires of her; she must be able to resist impulses, and sometimes strong ones, to stray from what due regard for the interests of others demands of her.19 Persons of reasonable firmness have what Stephen Morse terms normative competence, which is the capacity to understand and be guided by good moral reasons, including those that lie behind the legal prohibitions on such things as murder, violence, and

19

See the references (n 3). See also G. Fletcher, The Right and the Reasonable [1985] 98 Harv L R 949; J. Gardiner, The Mysterious Case of the Reasonable Person [2001] 51 U Toronto L J 273; and P. Westen, Individualizing the Reasonable Person in Criminal Law [2008] 2 Criminal Law and Philosophy 137.

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theft.20 Not only are they capable of understanding what the law prohibits and the consequences of failing to observe those prohibitions, they are capable of grasping how their conduct falls under the relevant prohibitions and bringing their intentional actions into line with them. More than this, the reasonable firmness standard requires persons to apprehend their own weaknesses and susceptibilities, insofar as these might lead them to crime, and to work at overcoming or modifying them. The criminal law makes little allowance for individuals who tend to be impulsive or weak-willed.21 They are expected and required to buck up, to work at taking a longer view of things or strengthen their resolve, especially if doing these things is necessary to avoid wrongdoing. As has often been remarked, the reasonable firmness standard is objective; it sets a normative standard that individuals are expected to meet. 22 If doing so requires them to work hard to avoid falling prey to their own weaknesses or susceptibilities, then so be it. Against this backdrop, we can better see why duress excuses. Persons who are resolute about avoiding wrongdoing, including careful to avoid putting themselves in circumstances in which they will be sorely tempted to engage in it, will struggle mightily when genuinely hard

20

Morse, Culpability and Control (n 13) 1605-10; see also Morses, Immaturity and Irresponsibility [1997] 88 J Crim L and Criminology 15, and Excusing and the New Excuse Defenses: A Legal and Conceptual Review [1998] 23 Crime and Justice: A Review of Research 329.

21

For an illuminating account of weakness of will as a character trait, see Thomas E. Hill, Jr., Autonomy and Self-Respect (CUP 1991) chapter 9.

22

Morse, Immaturity and Irresponsibility (n 20) 28; see also Larry Alexander and Kimberly Kessler Ferzan (with Stephen Morse), Crime and Culpability: A Theory of Criminal Law (CUP 2009) 147.

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choices between preserving their own lives, or the lives of their loved ones, and committing crimes are foisted upon them by others. Part of what explains why duress ought to excuse is that the choices pressed upon those subject to it are highly unusual. Most of us have some experience with strong desires to engage in wrongdoing and with resisting them. But few of us have been accosted by individuals demanding that we commit crimes or else suffer grievous harms or watch as our loved ones do so.23 We intuitively understand that we might not react well in such circumstances. There is also the way in which the deck is stacked so heavily towards engaging in wrongdoing and no way around having to make a choice. Even if persons have been resolute about avoiding wrongdoing, and have worked assiduously to avoid finding themselves in circumstances in which it is an attractive option, we might believe that, when confronted by threats, they have little choice but to engage in it. Of course, individuals subject to duress do have choices, albeit highly and unfairly constrained ones. Still, as Morse notes, the hardness of the choices that individuals face through no fault of their own, and with them the pressures to resort to offending, exist along a continuum.24 Historically, duress has been narrowly circumscribed by the criminal law, but it is hard to see

23

As Finkelstein (n 11) 279 notes, we are typically encouraged to give certain agent-relative reasons for action strong weight in circumstances other than those of duress and it will be difficult for us to simply set those reasons for acting aside when we are confronted with dire threats.

24

Morse, Immaturity and Irresponsibility (n 20) 31, and Excusing and the New Excuse Defenses (n 20) 399.

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how many of its standard elements can be defended philosophically.25 Thus, Morse has, in his more recent work, opted for a generic partial excuse, one which would enable an expanded list of criminal defendants to seek some mitigation from juries for the difficult choices they faced. The mitigation would come in the form of a verdict of guilty but partially responsible, and would effectively reduce the punishment to which offenders are subject.26 Though I am much in sympathy with Morses proposal, the cases he is thinking about are different than the ones with which I am concerned. My focus is not on individuals who engage in wrongdoing due to powerful emotions, temptations, or other trying factors in choice circumstances conceived as one-off. Sarah might not be forced to act immediately in order to stave off grave harm to herself and her children, but the powerful temptation to pilfer food does not go away and must be resisted over and over again, and all of this with little promise that relief from her predicament will come soon. If the acute but one-time dilemmas faced by

25

See Dressler (n 8) 1376. See also Stephen J. Morses Diminished Rationality, Diminished Responsibility [2003] 1 Ohio St J Crim L 289, and Paul Robinson, A System of Excuses: How Criminal Laws Excuse Defenses Do (and Dont) Work Together to Exculpate Blameless (and Only Blameless) Offenders [2009] 42 Texas Tech L R 259.

26

Morse, Excusing and the New Excuse Defenses, (n 20) 390-402, though as Morse envisions it, there would be sliding scale according to which those who committed less serious crimes would be eligible for more mitigation than those committed more serious ones. Also, Morse would have the determination of partial responsibility made at the more public trial stage, since it involves a normative judgment that should be made by the communitys representatives in the form of juries.

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individuals under duress excuse them fully, then it is hard to see how the somewhat less acute but repetitive dilemmas the chronically tempted face should not at least partially excuse them.27 Granted, if any one of the occasions on which Sarah has to resist the temptation to pilfer is looked at in isolation, we might reasonably conclude that she could and should have been able to do so, though the temptation was powerful and the prospects for relief from her plight were dim. It is the repetitive character of the self-control she needs to display that, in my view, should give us pause. Perhaps persons of reasonable firmness can be expected to desist from offending in the grip of powerful desires to offend once, twice, or thrice, even if the temptations come in relatively quick succession and there is little persons can do to avoid such desires or satisfy them without engaging in wrongdoing. But at some point, will not continual self-restraint require more than reasonable firmnesssomething close to extraordinary or even saintly self-restraint? My sense is that if we learned that Sarah had resisted pilfering until, at long last, she and her children either died or were released from the camp, we would judge her self-restraint to have been extraordinary. If similar chronic temptation structures exist in societies with which we are familiar, then they too might require exemplary self-restraint of individuals if they are to avoid wrongdoing. Yet the criminal law is usually conceived of as

27

Similarly, under homicide law, individuals who succumb to extreme anger might be entitled to a partial excuse, usually in the form of conviction for a lesser form of homicide. Yet it is hard to see why individuals who fail to control their anger on a single occasion should be granted some quarter by the criminal law while those who succumb to chronic temptation should be given none.

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setting a minimal baseline of required concern and action on behalf of our fellow citizens. It appropriately insists on reasonable firmness, not extraordinary firmness. The intuitive case that the challenges to self-control chronic temptation presents are formidable is, in fact, at least partially confirmed by empirical studies of self-control. There is now a substantial literature on what is termed the ego depletion effect of self-control.28 Experiments show that subjects asked to complete successive self-control tasks suffer selfcontrol fatigue, meaning that they perform less well on the later tasks. This self-control fatigue appears to exist across a wide spectrum of self-control tasks. That it exists seems, at this point, less in dispute than why it does. One leading model of self-control likens it to a muscle whose exercise on repeated occasions results in fatigue.29 Importantly, though a persons self-control muscle can be strengthened, repeated exercise might wear down even those who have exemplary self-control. Still, the muscle analogy is controversial, which is to say that what explains ego depletion is much less settled in the empirical literature than the fact that ego depletion exists. What seems clear is that self-control requires exertion and individuals appear to have limited and dwindling resources on which to call to exercise their willpower, especially

28

See Mark Muraven and Roy T. Baumeister, Self-Regulation and Depletion of Limited Resources: Does Self-Control Resemble a Muscle? [2000] 126 Psychological Bulletin 247; Martin S. Hagger, Chantelle Wood, Chris Stiff, and Nikos L. D. Chatzisarantis, Ego Depletion and the Strength Model of Self-Control: A Meta-Analysis [2010] 136 Psychological Bulletin 495; Richard Holton, How is Strength of Will Possible? in Sarah Stroud and Christine Tappolet (eds), Weakness of Will and Practical Irrationality (Clarendon Press 2003) 39-67; and Henden (n 5) 82.

29

Muraven, et al. (n 28) 248, and Hagger, et al. (n 28) 496.

24

when they must do so in relatively quick succession.30 Self-control requires effort and repetitive exercises of it wear individuals down. It might be objected that the empirical studies of self-control involve artificial exercises of it in rapid succession in controlled experimental settings. We thus must be careful about making inferences from such experiments to real-world settings, ones in which the self-control challenges individuals face are neither so discretely defined nor quickly successive. Perhaps individuals in the real world have more time to recover between their needed exercises of selfcontrol. Or perhaps their self-control tasks do not require as much focus and exertion as the ones in experimental settings. We must indeed be cautious about simply taking the evidence from the empirical studies of self-control at face value. The self-control tasks participants in these studies have been asked to perform are often contrived and typically occur in quick succession. However, these features of the experiments arguably bolster the conclusions I am urging, since selfcontrol tasks in many real-world situations might be more taxing and recur over longer periods of time, even if not in such rapid succession. Self-control in the real world might be more taxing because the stakes for the individuals who must exhibit it will be higher. Again, think of Sarah in the concentration camp. Given what is at stake in her refraining from pilfering, her exercises of self-control seem much harder than the ones required of subjects in the typical experimental
30

As Holton points out (n 28) 47, when agents in experimental settings are asked to regulate themselves in ways that involve acting contrary to their inclinations, they show the standard signs of physiological arousal that accompany effort: increased blood pressure and pulse, changed skin conductance, etc.

25

settings. Experimental subjects are required to perform tasks involving intense concentration or impulse resistance where not much is at stake except doing well on the assigned tasks. They do not have to resist powerful desires premised on saving their own lives or the lives of their children, self-control tasks which, intuitively, seem much more demanding. Worse still, Sarah must entertain the dreary prospect that relief for herself and her children is not in sight, a prospect that might reasonably lead to her to experience despair that weakens her resolve to avoid wrongdoing. The experimental subjects in the empirical studies of self-control face no such dispiriting prospects. Granted, their self-control tasks might come in quicker succession than the powerful temptations faced by Sarah, assuming that her opportunities to pilfer food arise only occasionally. But the demands on her self-control are repetitive, perhaps indefinitely so, in addition to being much more intense on the occasions when they occur. If the abilities of experimental subjects to exhibit self-control deteriorate on successive occasions when not much is at stake in their doing so, then it seems plausible to believe that self-control will get progressively more difficult for individuals who are chronically and strongly tempted. To the preceding, it will be objected that the moral reasons on behalf of self-control in many real-life chronic temptation structures will be much stronger than the ones experimental subjects have. Indeed, the experimental subjects arguably have few such reasons to show selfrestraint. Perhaps there is relatively rapid ego depletion in the experimental subjects because not all that much is perceived by them to be at stake in exercising self-control. No one will die, be injured, suffer grave indignities, or be deprived of property on which they depend to satisfy their needs if the experimental subjects falter at self-control. But for individuals whose failures at self-control will result in the victimization of innocents, considerably more hangs in the

26

balance. Individuals whose real-world failures at self-control will harm others ought to be more motivated to resist temptation and should thus be held to higher standards of reasonable firmness in spite of their enduringly difficult circumstances. Indeed, there is empirical evidence suggesting that individuals show less rapid ego depletion if they believe more is at stake in exhibiting self-control, which is not to say that they show no ego depletion at all.31 This is an important point, though one whose force depends on both the nature of the chronic temptations real-world individuals face and the strength of the reasons that exist against their committing wrongs. Consider, once again, Sarah. Though some might disagree, I believe that her situation is bleak enough that we should not view pilfering by her, if she engages in it, as we would view theft by individuals in more ordinary circumstances and this in spite of the fact that she has moral reasons against doing what she is strongly tempted to do. Again, the legal construct of the person of reasonable firmness is likely conceived for more normal circumstances of civilized life. In those more normal circumstances, crimes will typically be committed not to ward off ones own starvation or the starvation of one s children. Instead, they will be often be committed by individuals who rather simply and straightforwardly seek to advance their own interests at the expense of othersindividuals who with a little more ingenuity, hard work, or patience might have satisfied their desires without victimizing their fellow citizens. The reasonable firmness standard makes sense in such circumstances as an objective standard with which all citizens must comply. If citizens fail to meet it, then they appropriately face censure and hard treatment in the form of legal punishment for neglecting to show sufficient concern for the interests of others.
31

See Hagger, et al. (n 28) 498.

27

Individuals starving in concentration camps, and watching as their children do so, are a different matter. We should be cautious about judging harshly the actions of the unfortunates who find themselves in such horrific circumstances, especially if what they do is give into powerful and persistent temptations to engage in wrongdoing. Of course, if the wrongdoing is direct or extreme enoughkilling others to steal their food or betraying them to camp authorities so that one can get their ration of foodthen the balance of reasons might tilt the other way, even if they face chronic temptations to do just these things. But pilfering food from a storehouse is different, especially if the amounts taken must remain small so that the theft is not detected. Each such theft will only marginally reduce the amount available to others in the camp. Though it might be wrong for Sarah to pilfer, it is less blatantly wrong and such things do seem to matter in our judgments about the individuals who yield to chronic temptation. In line with this last point, there are various forms of offending in the real world that do not victimize others much if at all, though such offending might nonetheless be stoutly punished. Crimes involving the possession and distribution of drugs, prostitution, or gambling might victimize others, but typically do so with the consent and participation of victims. There is thus long-standing debate about the justification for keeping such activities illegal.32 But even if a convincing case can be made for doing so, the moral reasons individuals have against engaging in them appear to be relatively weak. At times those reasons might consist in little more than the fact that individuals ought to respect decisions by the democratic majority to outlaw certain kinds of conduct. This means that if there are chronic temptation structures in
32

See Douglas N. Husak, Drugs and Rights (CUP 1992), and Husak and Peter de Marneffe, The Legalization of Drugs: For & Against (CUP2005).

28

the real world, those inhabiting them might not have reasons against offending that are all of the same kind or strength. And this, in turn, means that individuals who are chronically tempted might have to exhibit self-control repeatedly and indefinitely even though (a) some of their basic needs or vital interests will likely go unsatisfied for the foreseeable future, (b) not all that much, morally speaking, is at stake in their continuing to do so, and (c) there might be little individuals have done to find themselves in such predicaments or can do to escape them.

3. Further Clarification and Elaboration

It will be useful to distinguish my position on chronic temptation from others with which it might be confused. First of all, my position is not that those who encounter chronic temptations eventually come to suffer from the kinds of extreme dysphoria that might be thought to undermine their abilities to grasp and act on the moral reasons against their offending. 33 It could be the case that having to exhibit self-restraint repeatedly and without much prospect of being able to satisfy urgent desires at some point leads individuals to experience such confusion, anxiety, or overwhelming fear that they lose their bearings and act impulsively in ways that wrong others. But I believe that ego depletion and dysphoria are different. It is one thing to suffer from self-control fatigue at some point and another to become so overwhelmed by emotion or desire as to not fully realize what one is doing. Those who give into chronic temptation might realize that what they are doing is wrong; it is simply that, at some point, they can no longer muster the willpower to resist their impulses. They give up. Perhaps they
33

Dysphoria is discussed by Morse in Culpability and Control (n 13) 1619.

29

should suffer some punishment for choosing to do so. My position is only that they should be partially excused given the manifestly difficult character of their circumstances. Yet, it might be objected, if they have mustered the willpower before, surely they can do it again. Why should we not view their failure to muster it one more time as a condemnable one, as giving up in a moment of weakness? Granted, if the occasions on which they fail to resist their impulses are looked at in isolation, they might seem indistinguishable from previous ones in which they held firm. It is the very nature of chronic temptation that its challenges are cumulative and for that reason, wearing, especially if individuals cannot tell themselves a plausible story about how they will be, at some point, able to obtain much-needed relief from having to continue their exertions. So yes, they finally yield to temptation and it might seem that we should judge them, and do so harshly, against their own past records of success. But keep in mind that the irresolute or weak-willed would likely have yielded to temptation right off the bat. Persons of more resolute character might have held out longer, though probably not indefinitely. But at some point, continuing to hold out in the face of strong temptations to offend will seemingly cross the line from displaying reasonable firmness of character to displaying extraordinary firmness of character; those who persevere past that point will appear truly remarkable. Moreover, it is not difficult to conceive of factors that might push agents like Sarah past even their formidable self-control limits. Suppose that one of her children succumbs to the effects of starvation and Sarah, desperate to save her second child, pilfers some food. Or suppose that rumors of impending camp liberation spread, raising camp occupants hopes, only to be dashed when the camp authorities notify the inhabitants of a great victory by

30

government troops against those who have been resisting its authority. In a trough of despair, Sarah can no longer muster the willpower to remain resolute and yields to the powerful desire to save her children lives. Nothing about her doing so can plausibly be taken to show her to be a person lacking in the reasonable firmness that the criminal law requires in more normal circumstances. Second, my position on chronic temptation can be distinguished from a view about resisting wayward impulses that has recently been defended by Stephen Garvey.34 Garvey has suggested that those who initially resist impulses that would lead them to commit crimes, but who eventually give into them, are entitled to some mitigation of their punishment. At least they tried to resist, which means that they were not wholly insensitive to the moral (and prudential) reasons against their criminal conduct and so are not lost to us in ways that those who make no effort to do so are. Whatever one thinks of Garveys argument, its focus is on one-off occasions of resisting wayward impulses. It therefore differs from the kinds of chronic temptation structures with which I am concerned, ones in which individuals must repeatedly exercise self-restraint in order to avoid wrongdoing. Also, my view is consistent with the possibility that when self-restraint fatigue takes effect, individuals might no longer attempt to resist their wayward impulses at all, though they have done so in the recent past. Still, there might be some similarity between my position and Garveys if what I am saying is that those who have repeatedly resisted their impulses, but at some point given into
34

Stephen P. Garvey, Dealing with Wayward Desire [2009] 3 Criminal Law and Philosophy 1. For a critique of Garveys position, see Vera Bergelson, The Case of Weak Will and Wayward Desire [2009] 3 Criminal Law and Philosophy 19.

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them, deserve credit for their past successes and therefore some mitigation of their punishment. In response to this, it could be argued that we should view chronic temptation much as we view duress. Those subject to duress do not have to show that they are accomplished at self-restraintthat they have successfully exhibited reasonable firmness of character in the past. They have only to demonstrate that their choices to offend were prompted by severe and unavoidable threats. Similarly, then, those whose choices were prompted by chronic temptation might only be required to show that they occupied such structures. However, there does seem a temporal dimension to succumbing to chronic temptation as I have characterized it. We would, it seems, be less inclined to condemn Sarah if she gave into the temptation to pilfer after resisting it numerous times than if she gave into it the first time it presented itself. She gets some credit for her previous acts of self-restraint. Yet if this is correct, there is then the practical problem of capturing this temporal dimension in the disposition of cases by the criminal justice system. One possibility would be for the courts to examine defendants past criminal records when defendants successfully establish that they occupy chronic temptation structures. Greater sentence mitigation might be given those defendants whose clean, or relatively clean, records suggest that they have succeeded in resisting temptations to offend in the past, though they were chronically tempted to offend. I would not pretend that such an approach is without its complications. Set to one side the obvious fact that criminal records are, at best, unreliable indicators of past criminal activity. There remain the hard problems of determining for how long defendants must have compiled clean records for them to warrant sentence mitigation and how to weigh their difficult circumstances against the severity of their crimes in setting final sentences. Nonetheless,

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sentencing judges are used to having to take into account myriad and competing factors of just these kinds. A further challenge to the position I am taking derives from a thought experiment offered by Morse.35 He asks us to imagine what would happen if individuals alleged to struggle with self-control knew that a police officer was standing by prepared to arrest them if, in a given choice situation, they succumbed to temptation. His suggestion is that most individuals would be able to exercise self-control if faced with an imminent threat of arrest. Applied to the chronic temptation structures with which I am concerned, Morses contention might be that, even in the face of self-control fatigue, most individuals would be able to summon the willpower to resist offending if they faced imminent arrest for their crimes. After all, ego depletion rarely will produce effects akin to those of spent muscles. The ego depleted are not like persons hanging by their fingers from a cliff who are physically unable to hang on any longer, all the while knowing that letting go will result in their deaths. There is, of course, the wild impracticality of Morses thought experiment: We simply cannot afford, as a society, to pay to keep a cop at the ready for every individual who finds himself in a chronic temptation structure. But the deeper problem with Morses thought experiment is that it tells us only that the chronically tempted might be able to resist wrongdoing if we can provide them with overwhelming prudential incentives to do so. Sarah, our fictional concentration camp occupant, would arguably be able to overcome her self35

See Stephen J. Morse, Bad or Mad: Sex Offenders and Social Control in Bruce J. Winick and John Q. LaFond (eds), Protecting Society from Sexually Dangerous Offenders: Law, Justice, and Therapy (American Psychological Association 2003) 165-82, at 178.

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control fatigue if she faced certain detection and death for pilfering food.36 What Morses thought experiment does not show, however, is that the moral reasons the chronically tempted have against wrongdoing are the source of their self-restraint. Why does this matter? Because the reasonable firmness standard is arguably one which has a moral component to it. We blame and are prepared to punish individuals who do not exhibit reasonable firmness in a given set of circumstances because we believe that they are capable of recognizing and acting on the relevant moral reasons they have against offending quite independently of the self-interested reasons they have against doing so. To elaborate this, let us distinguish self-controlp from self-controlm. Agents have the former when they are capable of resisting their wayward impulses when (but only when) they have strong reasons of self-interest for doing so. Agents have self-controlm when they are capable of resisting their wayward impulses based on the moral reasons they have for doing so, whether or not they also have self-interested reasons for doing so. Psychopaths might have self-controlp in certain circumstances. Even though they are quite impulsive, psychopaths might be able to resist their impulses to offend if the danger of arrest (or other significantly negative consequences) is sufficiently stark.37 But psychopaths are hardly persons of reasonable firmness, for they utterly lack self-controlm. Any thought experiment that does not allow us to
36

So, too, persons confronted with dire threats if they do not commit crimes might be deterred from committing those crimes if a police officer is standing by ready to arrest them. Yet this presumably does not show that duress ought not function as an excuse.

37

On the impulsiveness of psychopaths, see Grant T. Harris, Tracey A. Skilling, and Marnie E. Rice, The Construct of Psychopathy [2001] 28 Crime & Justice: A Review of Research 197, 204.

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distinguish the two is unhelpful. The question I am raising is not whether persons of reasonable firmness should be thought capable of resisting their wayward impulses if they are threatened with immediate arrest upon failing to do so, but whether they can be blamed for failures to exhibit self-controlm in circumstances of chronic temptation. Often in such circumstances, they will lack overwhelming reasons of self-interest to refrain from offending. Indeed, reasons of self-interest might weigh heavily in favor of offending. My contention is that individuals in chronic temptation structures might, due to self-control fatigue and despair at their bleak and seemingly unalterable fortunes, find themselves unable to summon, once again, their moral resolve to refrain from wrongdoing. They will let go in circumstances in which only those with extraordinary self-controlm might be able to hold out. Yet again, it is usually not thought appropriate for the criminal law to demand extraordinary efforts of its citizens.38 I concede that the moral reasons had by some of the chronically tempted will sometimes be so powerful that we have little choice but to insist that they exercise extraordinary self-control. For instance, if there are individuals who can achieve sexual satisfaction only through acts of violent murder or assault of others, then we must demand that they resist their impulses in perpetuity.39 Beyond the deterrent effects of such a tough stance, there is the moral argument that when the harms individuals will inflict on others are grave,

38

A point made by Morse in Immaturity and Irresponsibility (n 20) 31, and Dressler (n 8) 1369. For evidence that some males are sexually excited by the prospect of coerced sex in ways that many males are not, see Bethany A. Lohr, Henry E. Adams, and J. Mark Davis, Sexual Arousal to Erotic and Aggressive Stimuli in Sexually Coercive and Noncoercive Men [1997] 106 J Abnormal Psychology 230.

39

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they can reasonably be required to make every effort to exhibit self-restraint. However, we might at the same time acknowledge the terrific bind such individuals find themselves in and harbor skepticism about their prospects of long-term self-control.40 And it is important to reiterate that not all who offend due to chronic temptation do so in the face of such powerful moral reasons against offending.

4. Practical Implications

If my argument to this point has been persuasive, one thing that remains to be done is to say more about its practical implications for the criminal law. Again, I have developed the argument abstractly. I have not attempted to show in any detail that there are real-life chronic temptation structures of the appropriate kind. I have also been vague about what the criminal law should do with the chronically tempted, supposing there are such individuals, beyond suggesting that they might be partially excused from the legal consequences of their criminal acts. Assuming that there are real-life chronic temptation structures of the kind I have described, what we should do about them depends to some extent on the nature of such structures. In some cases we might be able to dismantle or weaken the structures. If, for instance, severe social deprivation constitutes such a structure, as I believe it often does, then
40

See Lippke, Why (Sex) Offending is Different (n 2). See also J. Michael Bailey and Aaron S. Greenberg, Symposium: The Science and Ethics of Castration: Lessons from the Morse Case [1998] 92 Nw U L R 1225.

36

the solution might be to redistribute goods and opportunities so that the poor are not chronically tempted or are much more weakly chronically tempted. Similarly, if firmly established corrupt practices constitute such a structure, as well they might, the solution is to try to root out such practices and replace them with open, honest, and accountable ones.41 Still, there might be some chronic temptation structures that we cannot dismantle. Individuals with paraphilias that lead them to strongly desire having sex with young children might be chronically tempted, but it is not clear whether we can alter the temptation structures that they occupy.42 In the absence of efforts to dismantle or weaken chronic temptation structures, or the ability to do so, no single approach to the agents who offend because of them seems uniquely suitable. A lot will depend on our assessment of (a) the extent to which real-life difficult choice circumstances constitute chronic temptation structures of the kind on which I have focused and so leave individuals with few viable options other than offending; (b) the strength of the moral reasons individuals in such circumstances have against offending; and (c) the strength of the reasons individuals in such circumstances have in favor of offending. Assessments of the bind that real-life difficult choice situations place individuals in will depend on such things as the possibilities of escaping such situations or the degree of responsibility agents have for finding themselves in such situations to begin with. The moral reasons individuals have against
41

For discussion of corruption among police officers and the intense pressures it brings to bear on individuals, see John Kleinig, The Ethics of Policing (CUP 1996) 163-87.

42

At least, we might not be able to alter such structures in the absence of either surgical or chemical castration. See Bailey and Greenberg (n 40) 1230-36.

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offending might be quite strong, as when innocent individuals will be killed or badly injured by crimes against them. Alternatively, they might be relatively weak, as in cases of so-called victimless crimes, where there seems little more than an (arguably weak) obligation of citizens to abide by criminal prohibitions that have been democratically enacted. Individuals can also have powerful and quite respectable reasons for offending, as when doing so is necessary to satisfy the basic needs of others. Further, primarily self-interested reasons for offending differ in urgency. There seems a clear difference between individuals who offend in order to satisfy one or more of their basic needs and individuals who offend simply to satisfy one or more of their idiosyncratic desires. At one extreme, we might have individuals who inhabit powerful chronic temptation structures not of their own choosing and whose reasons against offending are weak but whose reasons in favor of it are quite strong. An argument could be made that such individuals should be viewed as justified in offending or fully excused when they do so. As the reasons individuals in such circumstances have for offending weaken, or the moral reasons against their offending grow more powerful, it might be that offenders should be offered no more than partial excuses for their actions, typically in the form of sentence mitigation. Similarly, if individuals occupy difficult choice situations that come close to being chronic temptation structures but fall somewhat short of instantiating them fully, then we might think it appropriate to offer them no more than some mitigation at the time of sentencing. That might be true even if we believe that their reasons for offending are impressively strong and their reasons against doing so are not all that compelling.

38

It will be plain that I am eliding some difficult problems. These include how and where we draw the lines separating different treatment of the chronically tempted and by how much and in what ways we should seek to diminish their punishment under the criminal law. There is also the problem that reduced punishment of the chronically tempted might seem to demean the interests of their victims, assuming that their crimes have them. If part of the aim of legal punishment is to vindicate the value of victim interests, why should it matter, for that purpose, that the offender who engaged in the harmful conduct was herself a victim of chronic temptation?43 The harm done to the victim of the crime will be the same regardless of this fact. In short, if chronic temptation structures exist and endure, they pose numerous problems for the criminal law for which there might be no easy solutions.

43

The view that legal punishment aims to vindicate the value of victim interests is perhaps most closely associated with some of the writings of Jean Hampton. See her A New Theory of Retribution in R. G. Frey and C. W. Morris (eds) Liability and Responsibility: Essays in Law and Morals (CUP 1991) 377-414.