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Citizens, State Fallibilities, and Responsibility in Criminal Law
Marie Manikis*
I. Introduction
Criminal law theory has relied on several theoretical assumptions to ensure its legitimacy and implement its objectives. These objectives include accurately ascribing responsibility for the offense and effectively communicating this responsibility to the polity, including the victim and the wrongdoer, as a response that speaks against this wrongdoing.
The criminal law’s foundational components rest on several broad contentions, including the notion of individual responsibility for crime, the assumption that we live in an equal society, understanding crime as a public wrong, predominantly binary and indeterminist notions of responsibility, capacity, rationality, and volition, and a distinction between the state/victims as those harmed and individuals convicted as wrongdoers. An important dimension of the system’s legitimacy rests on the notion that the state, as the victim harmed and free of wrongdoing, has standing to punish and maintains a monopoly over the criminalization and punishment of public wrongs. As articulated by MacCormick, the aims of modern criminal law are broader in scope than simply the justification of punishment. They include the state’s monopolization and control by articulating a narrative that suggests “ending forms of private vengeance and blood feud and securing a state monopoly over the legitimate use of violence, further institutionalized through the development of a specialized body of criminal law and agencies to enforce it.”[1]
Importantly, any system that seeks to uphold its legitimacy and remain relevant would need to critically examine some of its assumptions. The criminal legal system is no different—particularly as its functioning has revealed the state’s fallibility on several levels, including its unequal implementation of criminal law by practices of over/under-criminalization of groups depending on their positionality within society. Accordingly, the system would need to adapt to existing and evolving societal knowledge and realities on the ground while being guided by its ideals, which include liberty, equality, and respect.
This article seeks to critically examine and revisit some of the underlying assumptions about wrongdoing and responsibility to ensure that these notions accurately reflect and communicate realities in the criminal legal process. It argues that a reconstructive project of criminal law would need to ensure that the system addresses the various state-created social injustices that impact on responsibility and criminality. Specifically, state failures would need to be brought forward by members of the polity, including victims, communities, and defendants, who have relevant knowledge of social injustices under a deliberative democratic framework. This role would be understood as a duty held by members of the polity towards a more accurate ascription and communication of responsibility for criminal wrongdoing.
The article is divided into three sections. The first section discusses the various state fallibilities as part of social context on the ground while the second section provides justifications for considering these state failures at various stages of the criminal legal process. The third section suggests that the polity has civic and legal duties (depending on context) to bring these failures forward within a deliberative democratic process guided by values of equality, liberty, and respect.
II. State Fallibilities
The state, as part of a structure created by and comprising humans, is fallible and therefore can fail its duties in different ways.[2] Specifically, in the context of criminal justice, the state and its agencies, notably police and prosecutors, are not flawless and can fail in various ways in implementing and respecting their duties, including errors in their decision-making processes, ranging from procedural, technical and substantive legal errors to biases in decisions, excesses in powers, and oppression. These failures can be classified into two main categories: individualized and systemic. Individualized errors are distinct from systemic ones, as the latter are rooted in forms of substantive inequalities/social injustices.
Duff’s framework on relative eutopias/dystopias[3] highlights two contexts of state failures, namely those that result in more individualized state errors that are not specifically part of systemic egalitarian failures and those that are predominantly systemic and underpinned by various forms of social inequalities. These forms of errors can co-exist and intertwine. While Duff’s framework focuses on failures vis-à-vis the accused, this section expands and adapts this framework to include victims.
A. Quasi-Eutopias
Duff distinguishes between two scenarios that lie near opposite ends of a spectrum ranging from a quasi-eutopia to a quasi-dystopia. The first scenario, referred to as a quasi-eutopia, describes the context of a decent democratic republic in which liberty, equality, and respect are values genuinely upheld by both citizens and government. In such societies, individuals treat each other with equal concern and respect.[4] In this context, criminal laws are democratically validated and legitimate in their scope; the criminal process respects the rights associated with due process and treats defendants with equality and respect. Punishments in this context are moderate in severity, constructive in their intent and impact, and do not entail the offender’s loss of dignity.[5] An underlying value of this process also includes the prevention of oppression towards individuals, through which charges of wrongdoing are put to the test in a way that protects citizens against potential oppression and injustice. This implies a decent polity, in which defendants are treated (by their fellow citizens and by the state) with equal concern and respect, as citizens.
Aligning with Duff’s framework, this scenario would include equal concern, respect, and treatment of victims as citizens. Processes that relate to prosecutions and determination of responsibility would therefore treat victims and defendants with respect, namely with a presumption of honesty, good faith, respect, and free from evidentiary stereotypes rooted in substantive inequalities, while pursuing this wider procedural quest for determining the truth about the public wrong that would merit accurate censure.
This scenario does not suggest that state wrongdoing never occurs. Duff highlights that “even in our eutopia, protections against various kinds of potential state oppression are important: it is a society of fallible human beings, including fallible officials and institutions.”[6] In this context, the state, including its prosecutors and its representatives, would recognize that a system run by humans can be fallible, which can relate to its own processes and decisions, and therefore would enable citizens to guard against its own fallibility. Specifically, this recognition would entail processes by which citizens could bring forward instances of state fallibilities in various decisions. Conversely, citizens would also be understood as fallible—highlighting the importance of a system of checks and balances in which power would not be held as a monopoly or quasi-monopoly.
Within this quasi-eutopian scenario, most instances of state fallibility would be in the realm of individual failures by the state and its actors relating to individual human fallibility, as opposed to decision-making flaws rooted in systemic failures, since within this scenario, values of respect and substantive equality are for the most part honored.
B. Quasi-Dystopias
Duff’s second scenario, referred to as quasi-dystopia, envisages a polity that is significantly dystopian, though not to the extent that law is nothing more than empty rhetoric. Most instances of state fallibilities would be underpinned by flaws rooted in systemic failures. In such a polity, while values of liberty, equality, and equal concern and respect for all still have some purchase within the social fabric, their influence is felt as much by their absence as by their presence. While these values inform the polity’s institutions and life, they function more as ideals that the polity radically fails to achieve—or even to pursue with serious commitment. Significant groups within this society are excluded from its rights and benefits, effectively stripping them of citizenship status. While the law can claim to have some authority, its application is substantively unequal and disproportionately used towards these groups in a way that results in over- and under-criminalization. These have collateral consequences that further exclude these groups from many of the rights and benefits of membership in the polity.
Lacey’s typology of social injustices is particularly useful in conceptualizing these different forms of systemic state failures present within quasi-dystopias.[7] She distinguishes between material injustices, epistemic injustices, and injustices of standing. Material injustices refer to the unjust distribution of access to public goods, opportunities, and material resources, which are known to be criminogenic. These conditions can shape opportunities for individuals to conform their behavior to the norms of criminal law, and place special barriers and difficulties in the path of their efforts to do so. An upshot of this includes epistemic injustice, understood as the way knowledge is shaped, received, and validated, rendering claims made by certain groups/individuals less valid and less audible due to their positionality within society. This type of injustice can be rooted in material injustices, but can also more subtly flow from factors such as implicit biases rooted in inequalities of standing, which affect how veracity and credibility are assessed. Indeed, in scenarios of social injustices, some individuals would be considered less credible and respected as their existence and their voices would be perceived as illegitimate due to stereotypes and biases towards them. Finally, injustices of standing refer to the basic level of participation, recognition, or status within a political community, meant to be marked by reciprocity and the minimal level of respect warranted to participate in such processes. Indeed, this form of injustice can be seen at a more basic level than epistemic injustices.
As highlighted in scholarship on state responsibility for failures,[8] many of these social injustices can be criminogenic as they give rise to and contribute to the creation of crime. These are important realities as responsibility for crime can become more complex and relational rather than purely individual.
III. The Relevance of State Fallibilities in the Assignation and Communication of Responsibility
Farmer has claimed that criminal law has often been pictured in a certain way for strategic reasons, despite the picture being in many ways remote from reality.[9] In this sense, a certain kind of orthodoxy has developed within criminalization theory—about the rational character of the criminal law and the subject’s responsibility and agency. He warns that any theoretical account of law risks falling between irrelevance and apology if it is not sufficiently critical. These comments are useful in thinking about attribution and communication of responsibility.
To date, assigning responsibility rests on certain theoretical assumptions, namely that responsibility in criminal law is individualized, that mental rationality and volition are a binary and not shaped by systemic inequalities, and that the state is rational and fair—and free of wrongdoing. The failures discussed above highlight that such assumptions can be nuanced and that notions of responsibility need to integrate those realities to assign and communicate responsibility more accurately.
A purely individualized account of responsibility for crime occludes the quasi-dystopian circumstances that may inform certain cases, as well as the state’s contributing role in the commission of crime and related harms. It is therefore crucial to reflect on both the ideals and the practice to produce a critical understanding of the modern institution of criminal law and allow for a more realistic narrative that reflects nuanced attributions of responsibility/blame.
A. Ascribing Individual Responsibility More Accurately
Substantively, state fallibilities known to be criminogenic should be relevant to the ascription of individual responsibility as they can impact volition, by affecting individual mental states in decision-making or by limiting the ability to make choices.
State fallibilities that affect mental states and decision-making processes include those that contribute to various traumas which impact the emotional regulatory system, such as a series of chronic systemic discriminatory practices as well as physical and mental abuse by state agents in criminal justice. Studies in neuroscience, social psychology, and trauma have made clear that the state’s infliction of trauma on an individual can be criminogenic; it may affect the person’s degree of volition/decision-making. Indeed, exposure to extreme adversity or toxic stress, including physical abuse and other chronic exposure to state violence, can induce significant and longstanding, yet reversible,[10] alterations in the brain’s structure and neurotransmission pathways that govern judgment, impulse control, empathetic responses, emotional regulation, threat perception, and social cues.[11] These alterations have been associated with a greater risk of maladaptive actions and behaviors, less impulse control, challenges with deciphering when actual danger is truly present, and a quickly activated fight/flight stress response system.[12]
Moreover, state fallibilities that affect volition can include situations that create reasons/incitements for individuals to commit offenses. An individual’s past traumatic experiences can provide reasons that may fall short of the current notions of necessity or duress exculpatory defenses yet still be relevant to the degree of moral blameworthiness.[13] Additionally, contexts typically understood as police entrapment, where state agents offer strong incentives to marginalized groups with unmet needs to commit offenses, may be read as criminogenic state misconduct warranting reduced responsibility. The need to consider this form of criminogenic state misconduct as an element of the wider social context becomes important to understand the offender’s level of responsibility and give effect to mitigating responses.
This rationale relates to the degree to which state failures affect one’s mental state/decision-making process rather than the severity of state misconduct. The degree of responsibility would depend on the extent to which misconduct is criminogenic and the level to which individual volition is affected by this criminogenic state misconduct. As suggested by Morse, contrary to the “all-or-nothing doctrines” relating to capacity, rationality, control, and hard choices, agency and mental state should be understood as concepts arrayed on a continuum[14] to accurately depict degrees of responsibility.
Evidence of the effects of state failure on one’s volition can be adduced in different ways, including with sociological and criminological expert reports, studies on criminogenic conditions, as well as social neuroscience, psychological studies, and background-cultural assessment reports.[15] Experiential evidence can also be useful and would be complemented by scientific research on the specific criminogenic nature of conduct and its effect on volition.
Procedurally, to enable a more accurate ascription of individual responsibility, there would need to be a way to introduce evidence on the systemic forces that can impact assessments of credibility. This relates to Lacey’s epistemic forms of social injustices, which arise from factors such as implicit biases rooted in inequalities of standing, for example, in how veracity and credibility are assessed. Indeed, in scenarios of social injustices, some individuals would be considered less credible and respected as their existence and voices would be perceived to be illegitimate due to stereotypes and biases towards them. This undoubtedly affects the ascription of responsibility.
Examples include matters relating to sexual violence, as well as other forms of violence that remain under-prosecuted[16] due to systemic biases rooted in inequalities. As highlighted by Tuerkheimer,[17] prejudiced disbelief must be recognized as a distinct type of epistemic error rooted in inequalities. One must not underestimate the potential for systemic and individual state decision-making errors taking place during the investigative/prosecutorial period and the multiple ways in which gender, racial, and socio-economic institutional biases intersect in these cases.[18] These realities echo some of the dynamics pointed out by Lady Hale’s dissent in Gujra,[19] which highlights that citizen-led evidence, such as in private prosecutions, can be useful in holding the state accountable in contexts where it has historically failed certain victims, namely those “who have traditionally had such difficulty in getting their voices heard or, if heard, believed.”[20]
B. Complementing Individual Responsibility: Responsibility as Relational and Communicative
Should the state, as the representative of the polity, lose its standing to punish when it has contributed to the offender’s social deprivation?[21]
Relational accounts of responsibility recognize that the state can also be held responsible alongside individual wrongdoers when morally imperfect and committing wrongful excesses and injustices relating to its implementation of criminal law. Indeed, they recognize the importance of seizing rather than avoiding mutual opportunities for responsibility ascription. Tadros has discussed this in the context of criminogenic poverty, arguing that, instead of losing jurisdiction, when two agents have committed wrongs, “what each ideally ought to do is both to hold the other person responsible for what he has done and at the same time to hold himself responsible for his own wrongdoing. He ought to enter into relations of responsibility with the other wrongdoer but in complement treat himself as an object of self-criticism.”[22]
Understanding responsibility as relational justifies the extension of communicative censure beyond individual blame to encompass state failures rooted in social injustices—notably in its contribution to criminogenic conditions as well as its wrongful excesses of harm and failures to censure in criminal justice. A typology of the various social injustices that would be relevant to the exercise of assigning relational responsibility and state censure have been articulated elsewhere, and include (1) the state’s systemic criminogenic contribution through the creation and maintenance of social inequalities; (2) the state’s systemic and criminogenic contribution through criminalization policies and practices that target or affect marginalized groups; and (3) the state’s production of excess harms from what would be considered proportionate and legitimate punishment.[23]
Communicating censure of all relational wrongdoers, including the state and the offender, would consider these agents as equal members of the citizenry and everyone would be treated with the respect due as moral agents by not denying their own equal moral status.[24] Failure to do so would arguably amount to adopting “defective practices of responsibility”[25] and neglecting to uphold the moral relationships of citizenry and treating everyone as moral agents of equal and great moral concern.
Communicative theorists have developed the notion of “responsive censure,”[26] which suggests that if the offender responds to the message of punishment, the state or the polity ought to listen and modulate its response. For Duff, not being responsive is equivalent to the state closing its ears to the individual after having demanded a response from them. Failing to respond would become a “wholly one-sided enterprise that is insensitive” to the other party and “not how a polity should treat its citizens if it is to treat, and respect, them as responsible members of the community.”[27]
A similar reasoning would apply if the state ignored or failed to consider citizen responses that invoke the state’s responsibility in its analysis. Failing to do so would not treat its citizens with respect and would contribute to an incomplete ascription of responsibility for criminogenic and inequitable practices. The state would also be expected to take on certain actions that suggest acknowledgment of wrongdoing, which can give rise to richer and qualitative responses.[28]
In contexts where state failures are predominantly systemic, criminogenic, and relate to material and status injustices, the state might need to incorporate responses that seek to minimize or partially redress these forms of state harm. For instance, part of the decision might need to recognize the context of inequalities and its effects in creating criminogenic conditions,[29] address the lack of services in communities,[30] issue state apologies, revise institutional enforcement policies that gave rise to discriminatory practices, and implement specific measures that may serve to improve the state’s relationship with a specific community.[31] It may wish to proceed with diversion or recognize that mechanisms within a certain community might be more equipped to render an appropriate response/sentence.[32]
In contexts where state failures relate to creating “excess harms” from proportionate punishment,[33] relevant authorities, including prosecutors and sentencers/sentencing reviewers, could decide to craft a decision that diminishes or removes foreseeable excess harms. Examples include the proposition of correctional/institutional programs offered to reduce state harms, such as the provision of culturally relevant programs considering the evidence,[34] as well as the effects of sentences at a given location.[35] As articulated elsewhere,[36] sentencing reviews might need to become part of the way sentences are administered, since state harms are not always foreseeable.
Bringing forward state fallibilities should be part of criminal law, if we strive for a system that seeks to offer greater nuance and accuracy in assigning responsibility and blame at various stages of the process.[37]
IV. Citizens’ Role Rooted in Bringing Forward State Fallibilities
Within a democratic framework, the enterprise of criminal law is conceived as the law of citizens/polity and as a mechanism for addressing public wrongs that concerns the entire community.[38] Citizens have a civic responsibility in assisting criminal justice’s legitimate and fair enterprise, by holding wrongdoers accountable through criminal justice which pursues this communicative endeavor.[39] Marshall highlights that citizens are responsible both to the state, insofar as they are responsible to one another in their role as citizens, and for the state.[40] In this light, the criminal law and its processes are a matter for which citizens are responsible not merely as subcontractors of responsibilities to officials, but as participants sharing responsibility for the enterprise of criminal law with state officials.
Victims, individuals accused or convicted, and community members[41] in their roles as citizens, would therefore have a duty to ensure that responsibility relating to crime is appropriately assigned and communicated. This highlights the importance of expanding citizens’ role as agents of state accountability, as one that enables them to bring forward various forms of state failures that can impact the assignation and communication of responsibility—specifically in ways that account for individual, systemic, and criminogenic (relational) state failures. Indeed, any failures that affect the ascription of responsibility, including systemic biases, and forms of legal and interpretative dimensions about individual and relational responsibility, would be relevant to bring forward by citizens as part of addressing defective practices of responsibility and improving the communicative role of the criminal law enterprise.
Rooting the roles of defendants, victims, and communities within wider practices of citizenship would also provide them with greater legitimacy to make substantive claims about state failures that are relevant to decisions regarding public ascription and communication of responsibility. A public deliberative democratic framework does not entail that every claim brought forward by citizens is accepted. Yet, contrary to frameworks that conceive individuals, notably victims, as bearers of predominantly private interests and subjective as well as private claims, a public framing does not start from a premise that victims cannot make direct claims about the public interest.[42] Indeed, deliberative democratic frameworks consider citizens, including victims, as relevant and legitimate participants that are presumed to have the rational ability and responsibility to bring forward justified considerations relevant to public decisions, including decisions that involve assignation of responsibility and censure. Nevertheless, considerations that citizens would bring forward would need to be informed by empirical/social science knowledge that can evolve in time[43] along with experiential knowledge. They would need to be justified and measured against principled and accepted societal values of liberty and substantive equality within a deliberative democracy.
The citizen’s role would be understood as a duty rather than as a choice. This builds on Marshall’s argument that the role-based duties of citizens and officials are interconnected and give the criminal law its institutional form.[44] She provides an analogy which characterizes ordinary citizens as “officials in plain clothes” (in parallel to Gardner’s “citizens in uniform” [45]) with the admonition that citizens cannot abdicate their responsibilities in the criminal process and hide behind the role of “ordinary citizens,” since all the roles in the criminal process are ones we inhabit as citizens.[46] This suggests that these duties towards a fair and just enterprise of criminal law remain in place for citizens, including a duty to step up when the state fails to fulfill its own duty according to its stated values.
An important consideration regarding legitimacy within a deliberative democratic process is the importance of knowledge one possesses relating to state failures (forms of oppression). Vasanthakumar[47] grounds the duties of victims of injustice in the duty to assist. She argues that victims (of injustices) are epistemically advanced concerning injustice and are therefore uniquely positioned to assist fellow victims based on their access to knowledge regarding the wrong. Accordingly, knowledge manifests in two ways: first, through the information they have, namely their awareness that there are ongoing grave injustices whose victims need assistance; and, second, through experiential knowledge, as they are on intimate terms with oppression and have a more nuanced understanding of the harms meted out by specific injustices. Specifically, they are privy to the nature of the oppression faced, the mechanisms by which it is inflicted, the personalities involved, and the gravity of the injuries suffered. This duty is to assist other victims so long as they can do so at no excessive cost to themselves. Building on this notion of assistance yet tying it to wider notions of civic duties, citizens would also have a duty of assistance as state agents do, which extends to the idea that this needs to be done in a way that is attentive to social oppression. Moreover, certain individuals/communities would possess specific knowledge about these forms of oppression (experiential and/or scientific knowledge) and therefore would need to bring those forward in the process.
Considerations relating to the duties of citizens to bring forward state failures can vary depending on the context under which state failure takes place across the quasi-eutopia/dystopia. This section begins by asking what responsibilities citizens would have in a quasi-eutopian scenario in bringing this knowledge forward and then asks how these responsibilities might evolve as we move along the spectrum towards progressively dystopian scenarios.
Within quasi-eutopias, where the state fails to protect its citizens against potential oppression and injustice, makes decisions contrary to common values and the public interest, and is also in part responsible for crimes and excess punishment, it would be important for citizens to bring these aspects forward and seek a form of accountability (response) by the state that relates to the aims of criminal justice.
This duty, even in a eutopia, should be characterized as a civic responsibility rather than a legal one for citizens who are oppressed by the state—in the sense that their treatment falls short of the principles to which the eutopia aspires. Civic responsibilities are those owed to our fellow citizens by virtue of membership within the polity but lack the force of law and are enforceable only by informal persuasion from our fellows.[48] The lack of legal enforceability against citizens who fail to undertake this duty would be important since the duty arises in contexts that relate to state fallibility and therefore citizens should not be legally expected or held legally responsible by way of sanction by the state for failure to bring forward the state’s very own legal failure. Citizens who are not oppressed but are aware of the oppression should have a legal duty.
As we move along the spectrum towards progressively more dystopian scenarios, there are notable differences to consider between the victim’s duty to hold the state accountable in instances of state fallibility. Indeed, as discussed in the previous section, the state in more dystopian scenarios would more often fail to recognize its own potential flaws and therefore be more resistant to questioning and challenging its own actions and decisions. In turn, this would make it more challenging and, in some contexts, more difficult for oppressed citizens to undertake this duty towards state accountability. Consequently, this underscores the importance of viewing this duty as a civic responsibility rather than a legal one. In more dystopian contexts, enforcing this duty legally could place an undue burden on citizens who are already facing significant obstacles and state resistance. Moreover, an additional reason for considering this duty as a civic one rather than a legal one in more dystopian scenarios is the reality that a legal duty against the victim would offer the state even more power that could be conducive to persecution and abuse. In such contexts, however, citizens who are not oppressed would have a legal duty to bring this knowledge forward.
Moving further along this spectrum, when nearing the actual dystopia in levels of state fallibility, this duty may become impossible to discharge and unrealistic due to citizens’ complete exclusion from the civic dimension. In such situations, where there is no more hope with regard to the state, it might be illusory and illegitimate to maintain that citizens still have a duty to hold the state accountable within its own state processes and enterprise. Arguably, these situations would be increasingly closer to a scenario where the state would lose its standing to punish, and communitarian self-governing frameworks may become the only legitimate response to crimes.
At present this level has not been reached even though we might be “somewhere towards the dystopian end of the spectrum.”[49] Accordingly, the duty of holding the state accountable would retain traction so long as the values of a quasi-eutopia still have some purchase and the state institutions are still attempting to pursue them with some commitment.
V. Conclusion
In conclusion, this article has suggested that the various forms of state failures relating to systemic inequalities are relevant and warrant evidential consideration, communication, and responses within a criminal legal process that seeks to be legitimate by ascribing and communicating responsibility accurately. These considerations should be integrated at various stages of the process, including during decision-making where systemic biases would be relevant dimensions to consider, as well as during wider conversations regarding individual as well as relational responsibility. Within a deliberative democratic rationale, we contend that these forms of social inequities that affect responsibility and decision-making should be brought forward by citizens as part of a civic duty. This includes victims, people accused or convicted of offenses, and wider communities who have social and experiential knowledge relating to the dynamics relating to the offense. This might contribute to the potential rapprochement of the victims’ interests with those of the accused in criminal justice, particularly as a focus of state wrongdoing and harms would be systemic. This contribution can be made at the various stages of the criminal justice process where such dynamics of state-produced inequalities are relevant, including but not exclusively, during matters that relate to the public interest within prosecutorial discretion, guilty pleas, sentencing, and throughout the administration of the sentence.
* Associate Professor and William Dawson Scholar, Faculty of Law, McGill University. The author is most grateful to Professors Markus Dubber and Nicola Lacey for organizing an insightful workshop and Special Issue on the timely theme of reconstructing criminal law. A sincere thanks for helpful comments on an earlier draft to the contributors of this workshop as well as to the organizers and contributors of the workshop on theorizing criminal law at the Max-Planck-Institute for the Study of Crime, Security and Law in June 2024. Finally, a special thanks to Marianne Lanctot for her research assistance as well as the William Dawson Fund and the Social Sciences and Humanities Research Council of Canada for their funding. Any errors remain my own.
[1] Neil MacCormick, Institutions of Law: An Essay in Legal Theory 207-09 (2007).
[2] R.A. Duff, When Should We Plead Guilty, in Sentencing the Self-Convicted: The Ethics of Pleading Guilty 15, 15 (Julian V. Roberts & Jesper Ryberg eds., 2023).
[3] Id.
[4] Ronald Dworkin, A Matter of Principle 190 (1986).
[5] Marie Manikis & Marianne Lanctot, From Gross Disproportionality to Human Dignity: Redefining Section 12 in the Context of Mandatory Minimum Sentences, Const. F. (forthcoming 2024).
[6] Duff, supra note 2, at 19.
[7] Nicola Lacey, Criminal Justice and Social (In)Justice, in Structural Injustice and the Law 168 (Virginia Mantouvalou & Jonathan Wolff eds., 2024).
[8] Marie Manikis, Recognising State Blame in Sentencing: A Communicative and Relational Framework, 81 Cambridge L.J. 294 (2022).
[9] Lindsay Farmer, Criminal Law as an Institution: Rethinking Theoretical Approaches to Criminalization, in Criminalization: The Political Morality of the Criminal Law 80 (R.A. Duff et al. eds., 2014).
[10] Federica Coppola, The Emotional Brain and the Guilty Mind: Novel Paradigms of Culpability and Punishment304 (2021). Considering the brain’s adaptability/spasticity, alterations can be reversed through an adapted relational environment. This suggests the importance of adapted responsive sentences that consider this social context.
[11] Jennifer Mervyn & Stacy Ashton, Trauma-Informed Neurobiology and Criminal Behaviour, in Introduction to Criminology 204 (Shereen Hassan et al. eds., 2023).
[12] Sophie M Aiyer et al., Exposure to Violence Predicting Cortisol Response During Adolescence and Early Adulthood: Understanding Moderate Factors, 43 J. Youth Adolesc. 1066 (2014); J. Douglas Bremner, Traumatic Stress: Effects on the Brain, 8 Dialogues Clin. Neurosc. 445 (2006).
[13] Richard Lippke, Chronic Temptation, Reasonable Firmness and the Criminal Law, 34 Oxford J. Legal Stud. 75 (2012).
[14] Stephen J. Morse, Diminished Rationality, Diminished Responsibility, 1 Ohio State J. Crim. L. 289, 296 (2002).
[15] R. v. Ipeelee, 2012 SCC 13.
[16] Michal Buchhandler-Raphael, Underprosecution Too, 56 U. Rich. L. Rev. 409 (2022); Kimberly A. Lonsway & Joanne Archambault, The “Justice Gap” for Sexual Assault Cases: Future Directions for Research and Reform, 18 Violence Against Women 145, 146, 157 (2012); Melissa S. Morabito et al., Decision Making in Sexual Assault Cases: Replication Research on Sexual Violence Case Attrition in the U.S. (National Criminal Justice Service, 2019).
[17] Deborah Tuerkheimer, Incredible Women: Sexual Violence and the Credibility Discount, 166 U. Pa. L. Rev. 1 (2017).
[18] Id.
[19] R. (on the application of Gujra) (FC) v. CPS, UKSC 52, 132 (2012).
[20] Id. at 124.
[21] R.A. Duff, Law, Language, and Community: Some Preconditions of Criminal Liability, 18 Oxford J. Legal Stud. 189 (1998); R.A. Duff, Blame, Moral Standing, and the Legitimacy of the Criminal Trial, 23 Ratio 123 (2010); R.A. Duff, Punishment, Communication, and Community (2001); Matt Matravers, “Who’s Still Standing?” A Comment on Antony Duff’s Preconditions of Criminal Liability, 3 J. Moral Phil. 320, 327-28 (2006).
[22] Victor Tadros, Poverty and Criminal Responsibility, 43 J. Value Inquiry 391 (2009).
[23] Manikis, supra note 8.
[24] Id. at 402.
[25] Id. at 401.
[26] Netanel Dagan & Julian V. Roberts, Retributivism, Penal Censure, and Life Imprisonment without Parole, 38 Crim. Just. Ethics 1 (2019).
[27] R.A. Duff, Responsive Penal Censure and Its Implications, in Sentencing, Public Opinion, and Criminal Justice: Essays in Honour of Julian V. Roberts (Marie Manikis & Gabrielle Watson eds., forthcoming).
[28] Duff, Punishment, Communication, and Community, supra note 21. Communicative theory recognizes the value of processes themselves and the achievement of this aim by exchanging explanations.
[29] R. v. Gladue, 1 S.C.R. 688 (1999); R. v. Ipeelee, 2012 SCC 131; R. v. Turtle, ONCJ 429 (2020). The impact of colonialism on the creation of criminogenic conditions is relevant at sentencing.
[30] In domestic violence, evidence about the lack of shelters in a community can be part of the response—signaling a governmental duty to increase the number of shelters.
[31] R. v. Shallow, ONSC 403 (2019). This can include trainings offered to police.
[32] Marie-Andrée Denis-Boileau & Marie-Ève Sylvestre, Ipeelee and the Duty to Resist, 51 U.B.C. L. Rev. 548 (2018); see, e.g., Turtle, ONCJ (2020) at 429.
[33] Marie Manikis & Audrey Matheson, Communicating Censure: The Relevance of Conditions of Imprisonment at Sentencing and During the Administration of the Sentence, 87 Mod. L. Rev. 570 (2024); Turtle, ONCJ (2020) at 429. The impact of colonialism and the unavailability of intermittent sentences of imprisonment due to the inaccessibility of the nearest jail to a First Nation’s remote community were relevant at sentencing.
[34] R. v. Anderson, NSPC 10 (2020).
[35] See, e.g., Turtle, ONCJ (2020) at 429.
[36] Marie Manikis & Nicolas Doiron, Solitary Confinement as State Harm: Reimagining Sentencing in Light of Dynamic Censure and State Blame, 26 Punishment & Soc’y 72 (2023).
[37] Manikis, supra note 8. Certain types of state failures/harms warrant a response that does not involve criminalization and punishment. Such cases would not have initial standing rather than a loss of standing since they are outside the purview of criminal law. Examples include state criminalization policies/practices that directly and intentionally target and harm members of marginalized groups.
[38] For R.A. Duff, Answering for Crime 141 (2007), an act is rightly classified as a crime “because it properly concerns the public, i.e. the polity as a whole.” See also S.E. Marshall & R.A. Duff, Criminalization and Sharing Wrongs, 11 Can. J. L. & Juris. 7, 19-20 (1998). Crimes should be understood as wrongs which concern us all as members of the community, and thus can be distinguished from private wrongs, which concern only those individuals directly involved (matters of private redress).
[39] Id.
[40] Sandra Marshall, “It Isn’t Just About You”: Victims of Crime, Their Associated Duties, and Public Wrongs 291, 298 (R.A. Duff et al. eds., 2015).
[41] A public deliberative democratic framework would expand the notion of victim to larger populations/marginalized communities in contexts of state failures. For example, in the context of environmental injustices, Joshua Ozymy & Melissa L. Jarrell, Of Sex Crimes and Fencelines: How Recognition of Environmental Justice Communities as Crime Victims Under State and Federal Law Can Help Secure Environmental Justice, 38 Pace Env’t L. Rev. 109 (2020), suggest that communities who have suffered from corporative toxicity should be viewed as crime victims. This would help to bring forward and address systemic failures by the regulatory state in protecting these communities. State responses would need to consider these realities and include acknowledgment, restitution, and wider measures to address these failures.
[42] Marie Manikis, Conceptualising the Victim in England and Wales and the United States within a Spectrum of Public and Private Interests, 41 Oxford J. Legal Stud. 219 (2021).
[43] Jeffrey Kennedy, The Citizen Victim: Reconciling the Public and Private in Criminal Sentencing, 13 Crim. L. & Phil. 83 (2018).
[44] Marshall, supra note 40, at 298.
[45] John Gardner, Criminals in Uniform, in The Constitution of the Criminal Law 97, 98 (R.A. Duff et al. eds., 2013) (quotation marks in original):
“Don’t think that when you step into your official role (your ‘uniform’) you stop being yourself and can abdicate responsibility in your capacity as an ordinary member of the public (a ‘citizen’) for the things that you do. You still answer to the law as yourself, and you can’t hide behind your public role when you do it.”
[46] Marshall, supra note 40, at 294.
[47] Ashwini Vasanthakumar, Epistemic Privilege and Victims’ Duties to Resist Their Oppression, 35 J. Applied Phil. 465 (2018).
[48] Duff, supra note 2.
[49] Id. at 17.
Suggested Citation: Marie Manikis, Citizens, State Fallibilities, and
Responsibility in Criminal Law, 1 Mod. Crim. L. Rev. 95 (2024).