Article:

Darryl K. Brown, Third-Party Interests in Criminal Law, 80 TEXAS L. REV. 1383 (2002).

Abstract:

In Third-Party Interest in Criminal Law, Professor Brown questions the consideration of collateral consequences to third parties as mitigating factors in state criminal law proceedings.  He acknowledges that traditional legal theories of retribution and deterrence, which define the need for punishment solely by culpability and harm caused, do not accommodate such considerations.  In this article, however, Professor Brown goes beyond the theoretical answer to examine how criminal law is actually practiced.  He argues that, under the current system, collateral consequences of punishment are considered, but in a haphazard and uneven manner, which generates problems concerning fairness and effective policy.  Brown believes that to maintain the legitimacy of criminal law, culpability must be balanced against civil/private alternatives and social concerns, such as third-party interests.  Therefore, he offers a qualified normative defense of the practice and proposes ways to more evenly and fairly execute concerns for collateral consequences.  This analysis implicates a commitment to parsimony in criminal law; Brown argues that the social cost of punishment counsels a more sparing use of criminal sanctions and a larger role for alternatives to criminal law.