The ongoing debate about the rationale for punishing blackmail assumes that there is something odd about the crime. Why, the question goes, should demanding money to conceal embarrassing information be criminalized when there is nothing wrong with the separate acts of keeping silent or requesting payment for services rendered? Why should an innocent end (silence) coupled with a generally respectable means (monetary payment) constitute a crime? This supposed paradox, however, is not peculiar to blackmail. Many good acts are corrupted by doing them for a price. There is nothing wrong with government officials showing kindness or doing favors for their constituents, but doing them for a negotiated price becomes bribery. Sex is often desirable and permissible by itself, but if done in exchange for money, the act becomes prostitution. Confessing to a crime may be praiseworthy in some circumstances, but if the police pay the suspect to confess, the confession will undoubtedly be labelled involuntary and inadmissible. If there is a paradox in the crime of blackmail, these other practices of criminal justice should also strike us as self-contradictory.
Contrary to the popular view in the literature, I wish to argue that blackmail is not an anomalous crime but rather a paradigm for understanding both criminal wrongdoing and punishment. That is an ambitious claim, one that requires at least a clear plan of exposition. My project is to seek "reflective equilibrium" across ten cases that are pivotal in the debates about the rationale for criminalizing blackmail. Reflective equilibrium requires a convincing fit between the agreed-upon outcomes in the ten cases and general principles that can account for these outcomes. After stating the cases and their legal resolutions, I will consider possible explanatory principles. The desiderata that I set for a sound analysis are not only that we explain the results but that we explain why blackmail is criminal – not only in the United States but in all civilized legal systems.
The latter requirement bears underscoring. It will not be sufficient, for example, to explain blackmail's status as a crime simply on the ground that it is immoral or that it leads to the inefficient use of resources. Countless immoral and inefficient activities are not punished. Affixing these labels to blackmail could, at most, be a first step in explaining why it is a crime. The inquiry would then focus on why the immorality or inefficiency warrants punishment. As we shall see, explaining the simple phenomenon of punishing blackmail requires an excursus into the tangled web of theories justifying the entire institution of criminal punishment. In order to account for blackmail as a crime, I offer a novel retributive theory of punishment – a theory that, so far as I know, has never before been articulated in the literature on punishment. The task is complex but simple. Blackmail turns out not to be a paradox but rather a paradigm for thinking anew about the nature of crime and punishment.
Criminal Law | Criminal Procedure | Law
George P. Fletcher,
Blackmail: The Paradigmatic Crime,
U. Pa. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3696