Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs.

中文翻译：

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刑法和刑法：错误约束和补充没收模型

安东尼·达夫（Antony Duff）的《刑法领域》对刑法进行了具有吸引力的道德重构。我同意，应以刑法为依据，以充分证据证明被告犯了公共过失，并据此追究其责任，并以此作为根据。但是，刑法不仅涉及对公众错误的审查。它也必须用于其他目的，例如防止人们犯下严重罪行，以及更普遍地违反合理的规定。这些目的，也许还有报应性司法，都要求刑法也应给予严厉的对待，但前提是这种待遇必须与所犯下的罪过相称。刑法的问题在于，许多禁止违法犯罪包括轻微错误，但也要求相对严厉的惩罚。为了解决这种不匹配问题，有必要用我所谓的“刑法”来补充达夫和我所认为的刑法。刑法以没收为由来解释为什么允许实行硬对待。没收必须是公平的，并且有其自己的比例限制。但是这些限制并不像刑法中隐含的限制那样严格。它所允许的处罚要比对许多违禁犯罪行为可以合理地判处的处罚更为严厉。同一行为可以被视为犯罪和刑事违法行为，而同一刑事司法系统可以并且应当处理犯罪和刑事违法行为。我认为是