Many of us have been intrigued this year by two powerful films which explore the difficulty of escaping a troubled past. In Oscar-winning Moonlight, we gradually discover why a small African-American boy is picked on as ‘different’ by his classmates, and follow his path from school-yard harassment and violence through drug dealing, a prison term and a painful achievement of liberation which nonetheless leaves the scars of the past deeply etched on his personality. In Manchester by the Sea, a man is haunted by the terrible consequences of a past mistake for which he is unable to forgive himself. Adding to his misery is the fact that many of his neighbors, unwilling to consign his tragedy to the past, shun or even taunt him. Yet bleaker than Moonlight, such resolution as the main character achieves consists in coming to terms with the fact that his ability to transcend the past is – notwithstanding a fair array of opportunities and acts of kindness – strictly limited.
Each of these films convey a vivid sense of how deeply human choices are shaped by history and context – and of how hard it can be to escape the social opprobrium, as well as the sense of personal failure, which comes with having stepped outside established social conventions. These themes may seem far removed from questions about the nature of criminal responsibility, but they are in fact exemplary of the way in which ideas of responsibility for crime have changed since the eighteenth century. In particular, the notion that what grounds criminal responsibility is a judgment of bad character – judging a person by the company they keep, identifying bad apples, giving a dog a bad name – have enjoyed a revival, notably Britain and the United States, in the late twentieth century, with troubling consequences for the quality of criminal justice.
While multiple patterns of responsibility-attribution in criminal law can be discerned throughout the eighteenth, nineteenth, and twentieth centuries, we can nonetheless discern some broad trends in the alignment of these different patterns. Practices of criminal responsibility-attribution have long exhibited a concern with some combination of character, capacity, and outcome: with ‘character’ standing in for a particular conception of how criminal evaluation attaches to persons and relates to identity; ‘capacity’ standing in for the concern with agency, choice, and personal autonomy; and outcome standing in for the concern with the social harms produced by crime. In recent years, a pattern founded in assessments of risk has also emerged.
In the eighteenth century, criminal law was dominated by character and outcome responsibility; but the former was gradually displaced during the modernization of criminal justice in the nineteenth century and early twentieth centuries. For much for the twentieth century, English criminal justice assumed a capable, responsible subject whose agency could be deployed in the service of reform, rehabilitation, culturally legitimated within a ‘civilized’ scientific discourse, as well as efforts at social inclusion. This system however began to be disrupted in the latter part of the twentieth century with the increasing politicization of criminal justice and an intensified focus on insecurity. This period saw the emergence of a new alignment of principles, with capacity responsibility still occupying a secure role among core criminal offences, but a new discourse of responsibility founded in the presentation of risk promoting a hybrid practice of responsibility-attribution based on a combination of putative outcome and a new sense of bad character not as sinfulness but rather as the status of presenting risk or being ‘dangerous.’
Arguably driven, not only by the feelings of insecurity associated with life in late modern societies but also by rapidly developing technologies of risk assessment in medicine, psychiatry, geography, and demography, this new hybrid form of character responsibility has been particularly evident in the areas of both terrorism and drug regulation, in the revival of status offences, and in the expansion of preventive justice through inchoate and ‘pre-inchoate’ offences. Indeed the revival of ‘character’ in contemporary criminal justice might be seen as the criminal law manifestation of what David Garland has called ‘the culture of control’: a reverberation of anxiety in a world marked by renewed economic and social insecurity, and one in which some countries have manifested an impulse to ever greater criminalization and penal harshness. These developments have been facilitated by the dramatic rise in the discretionary power of police and prosecutors accorded by the emergence of plea-bargaining as a fundamental mechanism in criminal justice. Moreover plea-bargaining might justly stand as the key symbol of contemporary criminal justice: at once subject to the formal consent of individual, ‘responsible’ offenders, yet embracing discretionary practices founded on unstated assumptions of dangerous-ness or bad character; rendering an extensive system of regulatory criminalization affordable while at the same time preserving an aura of constitutional propriety and respect for individual responsibility. Further examples of character-based responsibility –attribution include mandatory sentencing laws applying to particular categories of ‘dangerous’ offender, sex offender notification requirements and probation orders based on risk factors.
Moonlight and Manchester by the Sea therefore tap into an aspect of the contemporary zeitgeist which is of key significance to criminal law. Indeed the resources of popular culture have a great deal to tell us about the ways in which our formal practices of blame and punishment speak to, and are shaped by, deeper social currents. For example, it is also possible to draw on novels to illuminate and explain the gradual marginalization of women in the English criminal process. In the early eighteenth century, Daniel Defoe found it natural to write a novel whose heroine was a sexually adventurous, socially marginal property offender. Only half a century later, this would have been next to unthinkable. One might think of the disappearance of Moll Flanders, and her supersession in the annals of literary female offenders in the realist tradition by heroines like Tess of the d’Urbervilles, as a metaphor for fundamental changes in ideas of self-hood, gender and social order in eighteenth and nineteenth century England. One can draw on law, literature, philosophy and social and economic history to show how these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalization of women.
In a nutshell, it may have been easier to insert women into the (of course highly gendered) conceptions of criminal character which drove early eighteenth century attribution practices than to accommodate them within a conception of responsibility as founded in choice and capacity – a framework which was moreover emerging just as the acceptance of women’s capacity and entitlement to exercise their agency was becoming more constrained.