In their provocative Article “Mediating Rules in Criminal Law,” Professors Richard Bierschbach and Alex Stein tell us that rules of criminal liability and rules of evidence, often pushing in opposing directions, collectively determine the quantum and mix of deterrence and retribution that a given punishment practice delivers. An example could be the excuse defense of duress. This doctrine is designed to prevent punishment of some actors who are not morally at fault for their behavior (or at least comparatively less at fault than others) because forces not of their own making (and about which we have some sympathy) drive them to commit socially harmful acts. The doctrine might undermine deterrence by granting actors permission, past a point, to abandon efforts to resist offending. However, the evidentiary rule in most jurisdictions that requires the defendant to carry the burden of proving an excuse defense tilts matters somewhat back towards deterrence. Making the defendant prove duress filters out many of the weaker (and even fabricated) duress claims, which might arise in cases in which a defendant was perfectly capable of resisting pressure to violate. Bierschbach and Stein urge us to analyze many areas of criminal law doctrine with this methodology.
Their effort is an intriguing forward move in criminal law scholarship that seeks to remove barriers—perhaps of use to lawyers and law teachers—that have impeded full understanding of the system of social regulation and practices that produces punishment. In a variety of styles and methodologies, scholars have been opening our eyes to how classification-driven distinctions between substantive criminal law and criminal procedure, liability rules and evidentiary rules, law and social norms, and law and politics block us from clearly viewing the social practice of punishment.
As I worked with Bierschbach and Stein’s methodology, however, I became convinced that it is flawed. The approach requires us to force components of doctrine onto the authors’ deterrence-retribution ledger, yet, we can see as we are doing this that many of those components do not belong there. By the time we are done, we cannot escape the conclusion that the ledger itself is too wooden and simple to account accurately for the theoretical structure of a given locus of criminal law doctrines.