It’s not uncommon for people to try to shield themselves from blame or punishment by saying, “But everybody does that!”. This BEDT defense seems more appealing as a defense to some offenses (e.g., minor tax evasion) than to others (e.g., domestic violence). In a neglected paper, Doug Husak describes various types of crime to which the BEDT ought, he argues, be a defense. This paper extends his work by identifying a category he overlooks. The paper argues that often the BEDT shields from blame and punishment because the prevalence of the offense in the community shows that the punisher does not speak for the community when issuing the punishment. Since the punisher’s authority depends on its doing so, the BEDT shows in such cases that the punisher should stay its hand.
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Michael R. Welch, Yili Xu, Thoroddur Bjarnason, Tom Petee, Patricia O'Donnell, and Paul Magro (2005) “‘But Everybody Does It…’: The Effects Of Perceptions, Moral Pressures, And Informal Sanctions On Tax Cheating” in Sociological Spectrum, Vol. 25, No. 1, pp. 21–52, DOI: 10.1080/027321790500103
Id. at 21.
Douglas Husak (1996) “The ‘But-Everyone-Does-That!’ Defense” in Public Affairs Quarterly, Vol. 10, No. 4, pp. 307–334.
Id. at 307.
Id. at 308.
See id. at 311–314.
See id. at 311–316, 319. Husak thinks the accuser also assumes (3) Punishment of D for [a] serves to stigmatize D. Id. at 316. The further thought is that for someone to be stigmatized by a community he needs to be conceived of as belonging in an unusual class of people in the community. If the crime is common, and recognized to be, then he will not be thought to be in such a class in virtue of his commission of it, and so cannot be stigmatized. However, this line of thought depends on what must be an incorrect characterization of the relationship between justified punishment and stigma. To note that an offender would not be stigmatized if punished is to note that the punishment would be less bad than many, and so is easier, not harder to justify. Noting that “Everybody does that!” would serve not to shield the offender from punishment, but would, instead, shield the accuser from criticism for inflicting it. At least he didn’t stigmatize the offender. For this reason, I set aside Husak’s suggestion that the BEDT might work by showing that given the crime’s prevalence the punished offender would not be stigmatized for its commission.
Husak notes that if the legal realists were right, under one construal of their position, then if a type of act is sufficiently common, that’s a reason to think it’s not criminal. Id. at 314. Husak does not want to classify crimes, so construed, as Type 1; he identifies them as a separate class with respect to which the BEDT has purchase. I, by contrast, take them to be a species of Type 1. Under such a view, if [a] is of a sufficiently prevalent type, then it is not of type C, the type that is actually criminalized. That is what it is to be of Type 1.
See id. at 311–313.
Id. at 311 (“It is very hard to argue that the behavior of the statistically average person can be grossly negligent, a substantial deviation from a standard of care that a reasonable person would observe.”).
Consider Alabama statute, AL Code § 13A-6-81 (2014).
Id. at 321.
See id. at 313–314.
Donna St. George, Parents Investigated for Neglect After Letting Kids Walk Home Alone, The Washington Post (Jan. 14, 2015), https://www.washingtonpost.com/local/education/maryland-couple-want-free-range-kids-but-not-all-do/2015/01/14/d406c0be-9c0f-11e4-bcfb-059ec7a93ddc_story.html
Thanks to Vincent Chiao, Michelle Dempsey, Kim Ferzan, Alec Walen, and an anonymous referee for very helpful comments on an earlier draft.
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Yaffe, G. Revisiting the “But Everybody Does That!” Defense. Law and Philos 41, 419–440 (2022). https://doi.org/10.1007/s10982-021-09425-7