1. William Blackstone, Commentaries on the Laws of England (1774), https://avalon.law.yale.edu/subject_menus/blackstone.asp#intro. Certainly, this was not always the case. See, e.g., Seipp, David, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. Rev. 59 (1996)Google Scholar; Friedman, David D., Beyond the Crime/Tort Distinction, 76 B.U. L. Rev. 111 (1996)Google Scholar.

2. Lawrence C. Becker, Criminal Attempts and the Theory of the Law of Crimes, 3 Phil. & Pub. Affs. 262, 269 (1974).

3. Ambrose Y.K. Lee, Public Wrongs and the Criminal Law, 9 Crim. L. & Phil. 155, 155 (2015).

4. Grant Lamond, What Is a Crime?, 27 Oxford J. Legal Stud. 609, 614 (2007).

5. For the recent growth in scholarship directly on the topic, see especially Duff, R.A., Criminal Law and the Constitution of Civil Order, 70 U. Toronto L.J. 4 (2020)CrossRefGoogle Scholar; Marshall, R.A. Duff & S.E., Crimes, Public Wrongs, and Civil Order, 13 Crim. L. & Phil. 27 (2019)Google Scholar [hereinafter Duff & Marshall, Public Wrongs]; R.A. Duff, The Realm of Criminal Law (2018) [hereinafter Duff, Realm]; James Edwards & Andrew Simester, What's Public About Crime?, 37 Oxford J. Legal Stud. 105 (2017); Lee, supra note 3; R.A. Duff, Answering for Crime (2007); Lamond, supra note 4; S.E. Marshall & R.A. Duff, Criminalization and Sharing Wrongs, 11 Can. J. L. & Juris. 7 (1998) [hereinafter Marshall & Duff, Sharing Wrongs].

6. Edwards & Simester, supra note 5.

7. Lee, supra note 3, at 170. Despite such conclusions, Lee makes clear at the outset that he has “no intention to argue against this . . . idea.”

8. Duff & Marshall, Public Wrongs, supra note 5; cf. Marshall & Duff, Sharing Wrongs, supra note 5.

9. Because of this, the aspirations of the account outlined here and those of others may differ.

10. See works listed in note 5, supra.

11. Notably, Marshall & Duff, Sharing Wrongs, supra note 5; Duff, Answering for Crime, supra note 5; Duff & Marshall, Public Wrongs, supra note 5. Other key works in this debate have been in direct conversation with these works: Lee, supra note 3; Lamond, supra note 4; Edwards & Simester, supra note 5.

12. Paddy Hillyard & Steve Tombs, From ‘Crime’ to Social Harm?, 48 Crime, L. & Soc. Change 9, 11 (2007).

13. Louk H.C. Hulsman, Critical Criminology and the Concept of Crime, 10 Contemporary Crises 63, 71 (1986).

14. Lamond, supra note 4.

15. See, e.g., Duff, Answering for Crime, supra note 5; Malcolm Thorburn, Criminal Law as Public Law, in Philosophical Foundations of Criminal Law (R.A. Duff & Stuart Green eds., 2011); George Fletcher, The Grammar of the Criminal Law (2007); Ristroph, Alice, Desert, Democracy, and Sentencing Reform, 96 J. Crim. L. & Criminology 1293 (2006)Google Scholar.

16. Fletcher, supra note 15, at 181.

17. Id. at 151–152 (noting an “absence of a developed literature on political and criminal theory” and that criminal theorists write little on political theory, while political theorists write little on criminal theory).

18. See, e.g., Duff & Marshall, Public Wrongs, supra note 5; Lee, supra note 3.

19. Herbert Morris, On Guilt and Innocence (1976), at 31–58; George Sher, Desert (1987).

20. Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1684 (1992); see also Markel, Dan, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239 (2009)Google Scholar.

21. See, e.g., James Q. Wilson & Richard J. Herrnstein, Crime and Human Nature: The Definitive Study of the Causes of Crime (1985), at 14.

22. See, e.g., Michael S. Moore, Placing Blame: A Theory of the Criminal Law (2010).

23. Michael Moore, A Tale of Two Theories, 28 Crim. Just. Ethics 27, 40 (2009).

24. Id. at 42; Moore, supra note 22, at 152.

25. See, e.g., R.A. Duff, Political Retributivism and Legal Moralism, 1 Va. J. Crim. L. 179, 180 (2012) (noting Markel's critique and emphasizing Moore's attention in this respect at n.2); Moore, supra note 23; Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2007).

26. Matt Matravers, The Victim, the State, and Civil Society, in Hearing the Victim: Adversarial Justice, Crime Victims and the State 6 (Anthony Bottoms & Julian V. Roberts eds., 2010); Marshall & Duff, Sharing Wrongs, supra note 5, at 15 (“whether it is brought, and how far it proceeds, is up to the prosecuting authority”).

27. Kenneth W. Simons, The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives, 17 Widener L.J. 719, 719 (2008), at 719. Victims, of course, may play a practical role as key witnesses without whom the case could not proceed.

28. This is the case with a number of restorative justice initiatives. See, e.g., Mark S. Umbreit & Jean Greenwood, Center for Restorative Justice & Peacemaking, University of Minnesota, National Survey of Victim Offender Programs in the United States (1997).

29. In Canada, see Department of Justice, Plea Bargaining in Canada, http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr02_5/p3_3.html (“there is still no formal process by means of which Canadian courts are required to scrutinize the contents of a plea bargain”).

30. John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Texas L. Rev. 917 (2010). Marshall & Duff, Sharing Wrongs, supra note 5, at 15.

31. Carrie Menkel-Meadow et al., Dispute Resolution: Beyond the Adversarial Model (2005), at 391.

32. James M. Fischer, Enforcement of Settlements: A Survey, 27 Tort & Ins. L.J. 82, 90 (1992).

33. See, e.g., Robertson v Walwyn Stodgell Cochrane Murray Ltd, [1988] B.C.J. No. 485, paras. 4, 8 (C.A.) (“valid” here meaning according to general contract principles).

34. Judicial approval of settlements is, however, a normal feature in class action lawsuits given their representative nature. See, e.g., Class Proceedings Act, RSO 1992, §29 (Ont., Can.).

35. See Nils Christie, Conflicts as Property, 17 British J. Criminology 1 (1977).

36. This is not to say that the features of criminal wrongs are not themselves normative, only that certain features have attracted sufficient doctrinal and scholarly acceptance that they can be treated as describing a certain criminal orthodoxy.

37. Indeed, one can say with confidence that the criminal law has not always developed in a coherent manner. See, e.g., Becker, supra note 2, at 263.

38. Those who address such “criteria” directly include Lamond, supra note 4; Marshall & Duff, Sharing Wrongs, supra note 5.

39. Lamond, supra note 4, at 613–614.

40. See, e.g., Marshall & Duff, Sharing Wrongs, supra note 5, at 13.

41. On this critique of some accounts, see Marshall & Duff, Sharing Wrongs, supra note 5, at 9; Duff & Marshall, Public Wrongs, supra note 5, at 39; Edwards & Simester, supra note 5, at 115–117; Duff, Realm, supra note 5, at 216–217.

42. Lamond, supra note 4, at 613–614. Ambrose Lee also makes punishment central to the notion of public wrongs. Lee, supra note 3.

43. Marshall & Duff, Sharing Wrongs, supra note 5, at 15–16.

44. Punitive damages are an exception.

45. See, e.g., Husak, supra note 25.

46. Depending on one's views, this may or may not be a large majority of them.

47. Lamond, supra note 4, at 613–614.

48. See also Duff, Realm, supra note 5, at 223–224 (discussing the need to account for the expectation for “something more” beyond a formal verdict, and recognizing the potential diversity of what that “something more” is).

49. Husak, supra note 25, at 137.

50. Richard Dagger, Republicanism and the Foundations of Criminal Law, in Philosophical Foundations of Criminal Law (R.A. Duff & Stuart Green eds., 2011).

51. The articulation of two of these can be traced to Lamond, supra note 4, at 614ff., although his categorization and the one provided here are not perfectly aligned; I would place Dan Markel's account as set out in Dan Markel, What Might Retributive Justice Be? An Argument for the Confrontational Conception of Retributivism, in Retributivism: Essays on Theory and Policy (Mark D. White ed., 2011) in both of the first two categories. The third captures Lamond's own approach, which aligns with the subsequent writing of Ambrose Lee, supra note 3. See also Edwards & Simester, supra note 5, at 108.

52. See, e.g., Marshall & Duff, Sharing Wrongs, supra note 5, at 7–8; Husak, supra note 25, at 137.

53. Blackstone, supra note 1, bk. 4 at 5. Blackstone presents a difficult account to articulate, both because of the apparent diversity of rationales he blends together and because he does not go into depth on any of them. In his writings, one could argue that Blackstone distinguishes crime as a public wrong on any or all of the following bases: (i) that crime is a violation of public rights and duties, (ii) that crime is a violation of a “public law” that commands or prohibits acts to all, as opposed to regulating a subset of actors, (iii) that crime involves wrongs that are particularly fatal to society, (iv) that crime involves additional harms to the public considered as a public, varying according to each crime, and (v) that crimes are those acts that set problematic examples and necessitate deterrence. A similar argument has been offered much more recently by Richard Dagger and seems susceptible to the same critiques that follow. Dagger, supra note 50.

54. Blackstone, supra note 1.

55. In Canada, see R v. Sault Ste Marie, [1978] 3 S.C.R. 1299 (Can.), R v. ADH, [2013] 2 S.C.R. 269 (Can.). In the United Kingdom, see B v. DPP [2000] 2 AC 428, Sweet v. Parsley [1970] AC 132.

56. See also Robert Nozick, Anarchy, State, and Utopia (1974), at 65–71; George Fletcher, Basic Concepts of Criminal Law (1998), at 35–36.

57. Becker, supra note 2, at 273ff.

58. Id.

59. Lamond, supra note 4, at 616. See Becker, supra note 2, at 275 (acknowledging this reliance).

60. See supra note 41 and accompanying texts.

61. Markel, supra note 20; Markel, supra note 51. Malcolm Thorburn adopts a similar view of crime: see Malcolm Thorburn, Punishment and Public Authority, in Criminal Law and the Authority of the State (Antje du Bois-Pedain, Magnus Ulvang & Petter Asp eds., 2017).

62. Markel specifies this as a necessary condition of the plausibility of his account, suggesting that this entails “reasonable laws fairly passed . . . that are generally respectful of persons’ rights and liberties” rather than laws that “reinforce tyranny or oppression.” Markel, supra note 20, at 264.

63. Id. at 262–263.

64. The “Sovereign Citizens” movement might be such a case. See, e.g., Charles E. Loeser, From Paper Terrorists to Cop Killers: The Sovereign Citizen Threat, 93 N.C. L. Rev. 1106 (2015).

65. See Lamond, supra note 4, at 619.

66. Duff, Realm, supra note 5; Duff & Marshall, Public Wrongs, supra note 5; see also Duff, Answering for Crime, supra note 5, at 140ff. Earlier versions, since departed from, date back much earlier. See Marshall & Duff, Sharing Wrongs, supra note 5; Duff & Marshall, Public Wrongs, supra note 5, at 28 (reflecting on this initial account). See also Husak, supra note 25.

67. Duff, Realm, supra note 5, at 183, 153–159; Duff & Marshall, Public Wrongs, supra note 5, at 28–35. These threats or violations can occur in a variety of ways, some of which approach Becker's harm-based account, but need not be more than wrongs that are inconsistent with civil order values. See Duff, Realm, supra note 5, at 218–219.

68. Duff, Realm, supra note 5, at 184.

69. Id.

70. Duff & Marshall, Public Wrongs, supra note 5, at 30–31, responding to Edwards & Simester, supra note 5, at 132–133.

71. Lee, supra note 3, at 159; see also Patrick Tomlin, Duffing Up the Criminal Law?, 14 Crim. L. & Phil. 319 (2020).

72. Duff & Marshall, Public Wrongs, supra note 5, at 30. See also Duff, Realm, supra note 5, at 380ff.

73. On what Duff sees as the essential features of this, see Duff, Realm, supra note 5, at 292–297.

74. Duff may argue that a plurality of considerations, rather than a single consideration, answers this. While this might be the case, critiques remain that (i) at some level of abstraction, a shared characteristic should be identifiable, and (ii) if any decisive consideration is not a distinctively public reason for answering the question in the affirmative, Duff's account fails to distinguish tort from crime on public grounds. I explore this critique further below in discussing Grant Lamond's account.

75. Lamond, supra note 4; Lee, supra note 3.

76. Lamond supra note 4, at 621–622. Lamond also goes on to demonstrate how negligence can demonstrate the same disrespect and that its criminality should be limited to such cases. See id. at 623ff.

77. He also requires that the value of criminalization outweigh its costs, and that only those of sufficient gravity be criminalized. Id. at 626–627.

78. Lee, supra note 3, at 168–169.

79. Lamond, supra note 4, at 629, see also 625.

80. Abraham Harold Maslow, The Psychology of Science (1966), at 13.

81. See Hulsman, supra note 13.

82. Lee, supra note 3, at 169, 170.

83. Id. at 169. Or, on Duff's account, that which more generally ought to be responded to in the distinctively criminal way.

84. Id. at 170.

85. Edwards & Simester, supra note 5, at 108.

86. Lee, supra note 3.

87. Id.; Edwards & Simester, supra note 5, at 132–133.

88. Lamond, supra note 4, at 626–627; Lee, supra note 3.

89. Duff & Marshall, Public Wrongs, supra note 5, at 35; Duff, Realm, supra note 5. On this, see also Albert W. Dzur & Rekha Mirchandani, Punishment and Democracy: The Role of Public Deliberation, 9 Punishment & Soc'y 151 (2007) (Dzur and Mirchandani are not concerned with the notion of public wrongs per se, and instead are focused on an argument for public deliberation at the policy level for making decisions in criminal justice).

90. Lee, supra note 3, at 159.

91. Its use in addressing other issues in criminal theory has demonstrated some potential in this respect: see, e.g., Kennedy, Jeffrey, The Citizen Victim: Reconciling the Public and Private in Criminal Sentencing, 13 Crim. L. & Phil. 83 (2019)Google Scholar [hereinafter Kennedy, Citizen Victim]; Jeffrey Kennedy, Justice as Justifiability: Mandatory Minimum Sentences, Section 12, and Deliberative Democracy, 53 U.B.C. L. Rev. 351 (2020) [hereinafter Kennedy, Justifiability]. For other explorations of the various points of connection between deliberative democracy and criminal justice, see Dzur & Mirchandani, supra note 89; Greiff, Pablo de, Deliberative Democracy and Punishment, 5 Buffalo Crim. L. Rev. 373 (2002)CrossRefGoogle Scholar; Iontcheva, Jenia, Jury Sentencing as Democratic Practice, 89 Va. L. Rev. 311 (2003)CrossRefGoogle Scholar; Duff, Realm, supra note 5 (Duff references “public deliberation” throughout his account as the means by which its substance would be filled out, though without attending to implications of deliberative democracy in a detailed way). See also Roberto Gargarella, Punishment, Deliberative Democracy & the Jury, 9 Crim. L. & Phil. 709 (2015) (discussing possible and implicit connection to deliberative democracy specifically in Dzur's monograph).

92. Amy Gutmann & Dennis Thompson, Why Deliberative Democracy? (2004), at 3–4; Joshua Cohen, Deliberation and Democratic Legitimacy, in The Good Polity: Normative Analysis of the State (Alan Hamlin & Philip Pettit eds., 1989); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997).

93. See, e.g., Simone Chambers, Theories of Political Justification, 5 Phil. Compass 893, 895 (2010).

94. Id.

95. Rawls, supra note 92; Joshua Cohen, Truth and Public Reason, in Philosophy, Politics, Democracy 348–386 (2009). See also Stephen Macedo, Why Public Reason? Citizens’ Reasons and the Constitution of the Public Sphere (2010), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664085.

96. Andre Bächtiger et al., Deliberative Democracy: An Introduction, in The Oxford Handbook of Deliberative Democracy 1 (Andre Bächtiger, John S. Dryzek, Jane Mansbridge & Mark Warren eds., 2018). In this respect, it is in many ways closer to “first-generation” deliberative theory, in a Rawlsian tradition.

97. See Jonathan Quong, The Scope of Public Reason, 52 Political Stud. 233, 244–245 (2004). One concern about a more ambitious version of public reason is that the points of agreement would, in practice, be too limited or “incomplete,” inhibiting our ability to arrive at decisions. To the extent that much of criminal theory is concerned with limiting the reach of criminal law, this “incompleteness” may be an attractive feature of this political framework.

98. Kent Greenawalt, On Public Reason, 69 Chi.-Kent L. Rev. 669, 670 (1994).

99. For a related argument, see Candace McCoy, Wolf Heydebrand & Rekha Mirchandani, The Problem with Problem-Solving Justice: Coercion vs. Democratic Deliberation, 3 Restorative Justice 159, 178 (2015).

100. Even among those who accept the need to arrive at decisions that are justifiable to all, debate exists about whether it is necessary for deliberations to do so on the basis of shared reasons, rather than separate, and potentially private, reasons that converge on a particular decision. See Kevin Vallier, Convergence and Consensus in Public Reason, 25 Pub. Affs. Q. 261 (2011).

101. See, e.g., Duff, Realm, supra note 5.

102. Charles Larmore, The Morals of Modernity (1996), at 368; Joshua Cohen, Procedure and Substance in Deliberative Democracy, in Philosophy, Politics, Democracy (2009), at 163.

103. Insofar as the intersubjective nature of deliberative dialogue is transformative, a convergence view of deliberation would, in the other direction, sacrifice the benefits of requiring the offending individual to account for their behavior in terms of values shared by the community that is calling them to account. See, e.g., Cohen, supra note 92, at 23–26.

104. See especially Becker, supra note 2; Lamond, supra note 4.

105. As does Markel, supra note 20; Markel, supra note 51; Marshall & Duff, Sharing Wrongs, supra note 5.

106. See Becker, supra note 2; Nozick, supra note 56; Fletcher, supra note 56.

107. Becker, supra note 2, at 275 n.18.

108. See citations supra note 55.

109. Lamond, supra note 4, at 612. Lamond also notes that these crimes are the standard case from the nonlegal, sociological perspective as well.

110. Lamond, supra note 4, at 621.

111. The present article does not take a position on this issue, only recognizing that the account might accommodate both subjective and (some) objective fault.

112. See, e.g., R v. Beatty [2008] 1 S.C.R. 49 (Can.) (Canada distinguishes civil from penal negligence, holding that fundamental principles of criminal justice require this higher standard for criminal censure to be justifiable).

113. See R v. Bateman [1925] 19 Cr. App. R 8 and R v. Adomako [1994] 3 WLR 288 (again suggesting a relevant distinction between civil and penal standards of negligence).

114. None of this is to say that regulatory offenses, imagined separately from the stigmatic censure of criminal law, could not be a distinct body of norms.

115. Lamond offers a thin explanation in this respect, only noting that the disrespected values should be public in some sense.

116. This understanding seems to connect with, and add depth to, Duff's ideas around the “declaratory” nature of prohibition. See Duff, Realm, supra note 5, at 208.

117. See, e.g., R.A. Duff, Punishment, Communication, and Community (2001), at 86ff.

118. A full account of the sort of authority that criminal law commands over citizens might follow, but is beyond the present scope.

119. G.W.F. Hegel, Hegel's Philosophy of Right (1942), at 246.

120. While a full account of this is beyond the scope of this article, it is worth noting that this fact may erode—insofar as there are good moral reasons being invoked to support all such prohibitions—the distinction between so-called mala in se and mala prohibitum wrongs.

121. This consequence is supported in part by the fact that crime involves heightened disrespect for these reasons. Surely, insofar as would be required for their own legitimacy—as, recall, they too are public in a basic sense—tortious standards of care ought to be supported by public reasons as well. In failing to conduct themselves in line with these standards of care, tortfeasors might demonstrate some disrespect for these reasons. Nonetheless, the degree to which this disrespect warrants condemnation is clearly much less, and is sufficiently addressed by the implied disapproval of civil liability. Importantly, it should be added that the sense of censure and expression invoked here is a literal one. The logical consequence is a communicative one, through the use of language, and not to be distorted into a symbolic justification for retributive punishment. Censure here, therefore, should not be understood as “deserved”—with the risks of importing other moral logics into the analysis—but simply “warranted” or “necessitated.”

122. Duff, Realm, supra note 5, at 109ff. See also Mason, Sandra G., The Concept of Criminal Law, 14 Crim. L. & Phil. 447 (2020)Google Scholar.

123. Cohen, supra note 102, at 163. Albeit seemingly noncommittal to this lens, Marshall and Duff approach this idea by discussing the notion of overlapping consensus, but do not take the idea to this conclusion. See Duff & Marshall, Public Wrongs, supra note 5. See also Duff, Realm, supra note 5, at 180 (suggesting that Duff's doubts about realizing this may be part of the reason).

124. Duff does seem to endorse a thinner version of public reason. Duff, Realm, supra note 5, at 110, see also 180–181.

125. Markel, supra note 20, at 258 n.71.

126. Larmore, supra note 102, at 136–137.

127. Similarly, see above discussion of accounts of public wrongs by Duff, Lamond, and Lee.

128. Each of Lamond, Markel, Marshall and Duff, and Lee—all of whom largely represent the latest scholarship in the area—either explicitly adopt a retributive rationale in giving crime public meaning or suggest that these questions be considered. Lee seems to be relatively noncommittal in this respect, but still refers to retributive questions and does not exclude the rationale.

129. This, it should be noted, encompasses not only nonretributivists, but also retributivists who see retributivism as playing only a permissive or restrictive role.

130. See Section II above.

131. See, e.g., Criminal Code, §672.1ff. (Canada) or Domestic Violence, Crime and Victims Act 2004, §24 (England and Wales).

132. In short, an explanation of these “not criminally responsible” cases would involve noting (1) that such defendants, through their actions, also fail to have due regard or show adequate consideration for public values, evincing heightened disrespect, (2) that because of this, they too signal the prospective public interest, to be discussed later in this article, which warrants intimate, intensive public involvement after the fact, and (3) that because of their lack of culpability due to health conditions, there is no value in the moral dialogue component of this account (i.e., the reassertion of public reasons as censure), and thus the stigmatic, expressive dimensions of criminal justice do not apply. This explains how the basic structure of a violation of a defined offense followed by (albeit qualitatively different) intensive public responses is shared among both “criminal” and “non–criminally responsible” (NCR) offenses. Both might be explained accordingly as “public wrongs” in this sense, with only the former as criminal, though it is also possible to name only crimes as public wrongs and simply recognize that the analytical work done in this account of crimes as public wrongs also explains our rationale for NCR cases. This fact that it does so should lend weight to the account on which this article focuses. See also infra note 142.

133. Rawls, supra note 92; Larmore, supra note 102.

134. Amy Gutmann & Dennis Thompson, Democracy and Disagreement (1996), at 55ff.

135. See also David Dolinko, Some Thoughts About Retributivism, 101 Ethics 537 (1991); Christopher, Russell L., Deterring Retributivism: The Injustice of ‘Just’ Punishment, 96 Nw. U. L. Rev. 843 (2002)Google Scholar. See also Ewing, Benjamin, The Political Legitimacy of Retribution: Two Reasons for Skepticism, 34 Law & Phil. 369 (2015)CrossRefGoogle Scholar.

136. For one argument along these lines, see Ewing, supra note 135, at 390ff. (suggesting, in brief, that “[f]or a state to criminally punish its citizens partly for reasons of retribution is for it to pursue a highly controversial conception of the good at the expense of citizens’ fundamental, universally shared interests in liberty and security”).

137. See Ristroph, supra note 15.

138. See, e.g., Becker, supra note 2.

139. Recall that it is this that, as per the political framework espoused here, renders these values legitimately acted on by the public. It is not all values that are open to state support—only shared values.

140. Without suggesting that the content of public reason is fully identifiable from a philosophical perspective, its inclusion of liberty in particular should be a safe assumption.

141. See, e.g., Canada's Criminal Code, §422.

142. It should be made clear in this respect that while censure and public decision-making follow from the same notion of public wrongs, they are in fact distinct and separable responses that should not be conflated. Stepping back, either of these responses could, in different circumstances, suffice on its own. In addition to the case where censure itself suffices to address any public concern, the distinction between censure and the question of how to manage the public interest is further evidenced in cases where, because of mental illness, those offending are deemed to be “not criminally responsible.” In such cases, the condemnation or censure of criminal blame is rightfully thought to be inappropriate and is omitted. Nonetheless, despite the fact that there is no need for censure, there is still evidently a public interest in managing the offending individual, and thus the basic structures set up in this respect apply. Given an understanding of censure as the reassertion of public reasons for abstention from certain behavior, this is readily explicable: either because the cause of the offending was not a disrespect for values but instead mental illness (and thus, with the illness addressed, there is no real need to reassert those reasons), or, because of the mental illness, it makes little sense to engage in moral dialogue (as the interlocutor may not be in a mental position to appreciate those reasons).

143. Cf. Christie, supra note 35.

144. It is so “insofar” as this is signaled because there can of course be parallel actions against an offending individual, and while these actions may overlap, criminal proceedings are concerned with the public's interests while leaving private interests to civil proceedings. Consider, for instance, the emergence of punitive damages in civil proceedings or compensation orders in criminal proceedings. Also, note that the victim's interests can of course be seen as part of the aggregate public interest as well. See Marie Manikis, Conceptualizing the Victim Within Criminal Justice Processes in Common Law Tradition, in The Oxford Handbook of Criminal Process (Darryl K. Brown, Jenia I. Turner & Bettina Weiber eds., 2018).

145. Manikis convincingly demonstrates that victims can further this pursuit of the public good by acting as a motivated check on decisions made by public prosecutors. See, e.g., id. Nonetheless, as a general policy, public control is appropriate. The same might be said about delegating criminal justice decision-making to victim-offender mediation: it might be the case that in certain circumstances addressing crime through these “private” processes can effectively address public concerns—for instance, by way of the changes they can spark in offending individuals.

146. For more on this point, see Kennedy, Citizen Victim, and Kennedy, Justifiability, supra note 91. For other perspectives on deliberative sentencing, see de Greiff, supra note 91; Iontcheva, supra note 91. It is notable in this respect that current sentencing practice may be recognizable as such: including, as it typically does, reason-giving obligations, a defined set of “public” rationales for sentencing decisions, and submissions from a plurality of stakeholders (noting differences among jurisdictions, this frequently includes defense, crown, authors of presentence reports, and even victims and community members).

147. Roberto Gargarella has suggested that deliberative democrats ought to reject consequentialist approaches that do not respect citizens as autonomous persons. Roberto Gargarella, Tough on Punishment: Criminal Justice, Deliberation, and Legal Alienation, in Legal Republicanism 171–172 (Samantha Besson and José Luis Martí eds., 2009).

148. Rawls, supra note 92, at 795. If it is right that some rationales—for instance, retributive desert claims—do not satisfy the tests of public reason, this would however be influential in terms of what outcomes would be chosen. See, e.g., Ewing, supra note 135 and related discussion of the implications of Ristroph's work on opacity.

149. Gutmann & Thompson, supra note 134, at 55–56.

150. See discussion above in Section I.C.

151. The notion of punishment is not without varying interpretations, and moreover, is sometimes invoked unhelpfully as a blanket term for coercive interventions generally. For clarity, the term's usage here is in line with Christie's understanding as the “inflict[ion] of pain, intended as pain,” which features in a diversity of mainstream theories of punishment. See Nils Christie, Limits to Pain (1981), at 5. For a helpful discussion of the varying uses of the term, see Martin Wright, Is It Time to Question the Concept of Punishment?, in Repositioning Restorative Justice 5–7 (Lode Walgrave ed., 2011).

152. For one answer to this question, see de Greiff, supra note 91.