By Louise Kennefick, Department of Law, Maynooth University
Opinion: a willingness to consider states to be genuine moral wrongdoers is quietly growing in the field of criminal law theory

Under our present legal paradigm, it is impossible to hold the state responsible in a domestic criminal matter. However, death and taxes aside, nothing is immune from progress, no matter how entrenched it may be within our cultural psyche and socio-legal practices. Indeed, though such a fantastical prospect is rarely (if ever) considered within wider criminal law circles, a willingness to conceive of states as genuine moral wrongdoers is quietly growing in a small corner of the field of criminal law theory (e.g. Franςois Tanguay-RenaudAlice Ristroph). 

When the prospect is considered, one of the most commonly cited reasons for justifying state responsibility for domestic crime is where the accused comes from a severely disadvantaged background. The argument is that the state has a duty to pursue and secure social justice for each of its citizens in a liberal democracy. If one of those citizens commits a crime, and it can be shown that severe environmental deprivation is a factor that lead to the offender’s criminogenic behaviour, then the state, as an agent of the criminal law, should shoulder some (or all) of the blame for that crime, as it has failed in its wider social duty.

As it stands, the law is blind to factors such as age, gender, socio-economic background, adverse childhood experiences etc when assessing blame. Therefore, any expansion of the concept of criminal responsibility to include state failings would require Madam Justice to open her eyes to the reality and effect of inequality and deprivation within community settings.

Notwithstanding the fact that many people who come from a socially disadvantaged area do not display criminal tendencies, there exists a marked over-representation of young adult males from deprived backgrounds in criminal justice systems across all Anglo-American jurisdictions. For example, the Prison Reform Trust reported in 2012 that 18 to 25 year-olds in England and Wales account for a third of those sent to prison each year, a third of the probation caseload and a third of the total social and economic cost of crime.

But if society were ever to reach a point where state responsibility for domestic crime in the context of severe environmental deprivation became the people’s mandate, then two factors would need to be established. First, that the volitional capacity of an offender is impeded by reason of his or her environmental background. Second, that severe environmental deprivation leads to criminal behaviour.

In the field of psychology, it is well established that certain psychological factors are predictive of criminal behaviour. For example, Moffitt’s 2011 study shows that an individual’s capacity to exercise self-control in childhood predicts his or her criminal offending outcomes in later life. But these psychological factors are not innate causes of such behaviour, they are themselves a product of the individual's environment and resources.

This point is illustrated by Bernheim’s 2015 study which employs a behavioural economics model to show how poverty can erode self-control. Further, Frankenhuis et al’s 2016 study shows that individuals behave even more impulsively in environments that are harsh and unpredictable, such as those that are socially and economically deprived. They have different control settings, different perceptions of risk. Sharkey, Besbris and Friedson’s 2016 study suggests that poverty is strongly correlated with criminal behaviour through individual characteristics and associated conditions, such as unemployment, family structure, peer networks, psychological strain, or exposure to intensely violent environments. The science speaks for itself.

Returning to the law, our present capacity-based system focuses solely on the subjective mental state of the accused (e.g. the intention) and his or her ability to choose otherwise. This provides a ‘clean’, rational, and common sense framework for responsibility attribution. However, as legal philosopher, Herbert Morris, acknowledges, such a system only works where everyone comes to the table of justice having received their fair share of benefits and burdens.

Not everyone has equal opportunity to choose the better path, not everyone has the same stake in the social contract and not everyone has the requisite impulse control to resist temptation. Short of removing responsibility from the offender (which would undermine agency), then the full moral context of an offence could arguably be recognised by sharing responsibility for the offence with the state, provided the following three conditions are met:

  • (i) where it can be shown that the accused’s impulsivity is impeded
  • (ii), where the accused has been subject to severe environmental deprivation (e.g. extreme poverty, childhood trauma)
  • (iii) where the state is responsible for some failure in social policy which is directly related to that severe environmental deprivation, e.g. abuse in care, lack of educational opportunity, failure in delivering mental health services, childhood homelessness etc.  
Remaining blind to established scientific research relating to impulsivity, and deprivation and crime, at the point at which society attributes criminal responsibility to its citizens arguably leads to individualised unfairness and furthers structural inequality.  In this regard, the words of Judge David Bazelon in United States v. Alexander remain as pertinent as ever: "we cannot rationally decry crime and brutality … without at the same time struggling to enhance the fairness and integrity of the criminal justice system. That system has first-line responsibility for probing and coping with these complex problems". Food for thought, at least.