Crime: Definition

In recent years, the distinction between civil and criminal wrongs has become somewhat blurred. On the civil side, for example, there is the institution of "punitive damages," by which an individual is punished for the intentional infliction of an injury or a malicious breach of contract. Punitive damages are intended as punishment for the injurer, unlike the ordinary civil remedy of compensatory damages that cannot exceed the amount required to make the victim whole. On the criminal side, there is the increasingly common use of monetary penalties in lieu of incarceration. Such penalties are often paid as compensation to the victim in the form of restitution. There is also increasing use of the criminal sanction against corporations. Since a corporation can only be punished with monetary sanctions, and since punitive damages are increasingly awarded in civil suits, the distinction between civil and criminal in such cases is a nominal one. It would appear to consist mostly of procedural differences, such as the different standards of proof and different rules of evidence. Finally, there is a recent movement to enhance the role of the victim in criminal proceedings, stemming from the belief that crime victims have a right to representation in the prosecution of their attackers. The idea of victim's rights most strongly suggests a shift away from the conception of crime as a public offense. It suggests that the punishment of the offender serves, at least in part, to satisfy the victim's need for vengeance. This trend toward the "privatization" of crime finds expression in various proposed institutional reforms as well, such as the proposal to convert prisons to private ownership.

The acceptability of these various modifications of the traditional notion of crime depends partly on what we take a crime to be. Is a crime simply a prohibition that appears in one of the state or federal penal codes under the heading "criminal"? Or is the criminal category a deeper one, one that does not derive its meaning from any particular use to which the notion of crime is put? The first would be what we might call a "positivistic" stance toward the notion of an offense. It treats crime entirely as a legislative concept. The second would be a normative stance toward the notion of an offense identifying the criminal category by a theory of justified prohibition. On a positive approach, there can be no objection to punishing corporations or enhancing the role of the victim, since there is no obligatory content to the notion of an offense. On a normative approach, by contrast, there may be grounds for objecting to these modifications to the traditional treatment of crime. For it may turn out that punishing an offender at the behest of the victim, especially if associated with the payment of restitution, is not legitimate according to our best theory of justified punishment.