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Increasingly, one sees the homeless on the streets, alleys, and doorways of commercial, recreational, and living spaces of our cities otherwise populated by the affluent and relatively affluent. At the same time, there has been an increase in the creation and use of so-called “public order laws,” such as forbidding sitting on sidewalks, lying down on benches, and panhandling in certain tourist areas. Together with laws already on the books forbidding public intoxication, open containers of liquor in public and urinating in public, this suite of laws provide police with a means to control the day-to-day lives of the homeless on the city streets.

While there is a rich and extensive literature exploring the philosophical justification for the use of the criminal sanction, little has been concerned with minor crimes (misdemeanors), and none of the literature concerns these misdemeanor public order laws. Termed “crimes of misery” by the author, this suite of laws forbids conduct naturally flowing from life on streets as experienced by the desperately impoverished, mentally ill, chronically alcoholic, and/or drug addicted.

In this article, the author carefully analyzes these crimes of misery within each of the five philosophical grounds which traditionally justify and guide punishment. Thus, the crimes of misery are analyzed under a variety of theories of retribution, as well as general deterrence, specific deterrence, incapacitation, and rehabilitation. From this, the author concludes that upon analysis none of the traditional philosophical theories can justify the crimes of misery and, as such, those crimes are morally unsupportable and unjust.


Published as John B. Mitchell, Crimes of Misery and Theories of Punishment, 15 NEW CRIM. L. REV. 465 (2012). © 2012 by the Regents of the University of California.

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