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Thursday, April 07, 2016

How does one measure the gravity of crimes?

I'm back.  And while my first post was deliberately one that could appeal to a general audience, (see here for a discussion of faculty works in progress presentations), I want to turn my attention to the issues I write about.  My current paper compares the gravity of the crimes investigated at the International Criminal Court (ICC) to crimes committed in domestic systems.

Gravity is a term of art at the ICC, and it is used several times in the Rome Statute.  In particular, gravity serves as a threshold for the court to take action.  For example, the gravity of the crimes is a factor the Prosecutor must consider before beginning an investigation.  See Rome Statute, Art. 53.  And the Court cannot hear a case if the crimes are "not of sufficient gravity."  Id., Art. 17.  (The gravity of the crimes are also a factor the court must consider at sentencing, id., Arts. 77-78, but that is less relevant for what I am discussing.)  Thus, the concept of gravity serves an important regulatory function at the ICC - it keeps the court focused on the "most serious crimes of concern to the international community as a whole."  Id., Preamble.  

However, gravity is ultimately a relatively simple idea.  It refers to the seriousness of the crime.  Part of the thesis of my article is that the concept of gravity can be used to draw meaningful comparisons between the seriousness of domestic and international crimes.

I must admit up front that I know a lot less about domestic criminal law than I do about international criminal law, but my sense is that prosecutors rarely formally evaluate the gravity of the crimes in domestic systems before initiating an investigation.  Indeed, in some civil law systems, I believe that prosecutors have a legal obligation to investigate all crimes (although I wonder if there are ways in practice to circumvent such rules).  In such systems, the gravity of the crime is legally irrelevant to the prosecutor's decision whether to investigate.  

In common law systems like the US, prosecutors probably have more discretion about whether to initiate investigations and it may be true that they will sometimes not investigate potential crimes if they do not seem serious enough to warrant the expenditure of investigative resources.   Nevertheless, I am unaware of any rules that would require them to formally evaluate the gravity of a crime before deciding whether to investigate.  (If you have any experience as a prosecutor at either the federal or state level, feel free to chime on this point as I could well be wrong.) 

Despite the fact that gravity does not appear to be a commonly used concept in domestic criminal systems (if you search for "gravity" and "crime" together most of the things you will find relate to the ICC), it is one that I believe can be used to analyse crimes in domestic systems.  In my article, I use the definition the ICC Prosecutor has adopted.  It is a multi-factor test (yay for lawyers and their multi-factor tests!), which combines both quantitative and qualitative components to try and evaluate the seriousness of crimes.  The factors the Prosecutor uses internally to assess the gravity of crimes when deciding whether to initiate an investigation are:

1. The geographic scope of the crimes, particularly the number of crime sites under consideration;

2. The temporal scope of the crimes;

3. The structure and organization of the perpetrators or perpetrator groups;

4. The identity of the victims;

5. The number and type of victims;

6. The manner in which the crimes were carried out, particularly focusing on brutal or inhumane means of committing the crimes); and

7. The legal qualification of the crimes.

These are obviously not all objective variables.  Factors 1, 2, 5, and 6 can (with sufficient work) be described in relatively objective terms.  The other factors, particularly factor 6, are more qualitative in nature.  The result is that gravity is not a purely objective variable.  The goal, however, is to be able to compare the relative gravity of different crimes, and I believe the gravity factors are sufficient for this purpose.

Well, I managed to spend nearly 700 words just talking about gravity.  That seems like enough for now.  My main question for you the readers is whether you think the gravity factors described above can be used to evaluate domestic crimes and compare them to the gravity of crimes investigated by the ICC?

Posted by Stuart Ford on April 7, 2016 at 03:08 PM | Permalink


The ICC is subject to a recurring criticism that it costs too much and the states that fund it are often arguing that it has too many resources and resisting efforts to increase its resources. Thus looking at the resources that states (in some cases the very same states that are arguing the ICC costs too much) devote to investigations of crimes of the same approximate gravity that occur on their own territory should shed some light on whether the ICC is under or over-resourced.

Posted by: Stuart Ford | Apr 8, 2016 2:30:43 PM

Thanks, Stuart. If I can ask, why do you do that? Is the end goal to come up with a standard for what crimes should be investigated by the ICC, on the assumption that the practices in US states form a sort of standard that the ICC should follow?

Posted by: Orin Kerr | Apr 8, 2016 2:16:47 PM

Thanks for the question Orin. The point of the exercise (which hopefully will be the subject of my next blog post) is to try and identify crimes committed in domestic settings that are comparable to the crimes the ICC investigates. From there, I move to looking at what investigative resources states devote to such crimes committed on their territory and compare that to the resources available to the ICC to investigate similar crimes.

Posted by: Stuart Ford | Apr 8, 2016 1:27:07 PM

A clarifying question: Is the point to develop a standard for evaluating the seriousness of crimes in the abstract, or is the point to develop a standard that should guide prosecutorial discretion in terms of what crimes should be investigated or prosecuted?

If it's the former, in terms of domestic criminal law, I think the usual way we rank the seriousness of crimes is by comparing either the statutory maximum sentences available for those crimes or (where there is a relatively definite guidelines system) comparing the likely guidelines sentences. So we might say that felonies -- usually but not always defined as crimes punishable by more than a year in jail -- are usually more serious than misdemeanors.

In terms of beginning an investigation, usually it's the police that investigate cases and then bring them to the prosecutors. The prosecutors can then either agree to prosecute or decline to prosecute. For guidance on the decision of whether to prosecute, and the role of the seriousness of the crime in that determination, you might consult the federal US Attorney's manual chapter, 9-27.000 - Principles Of Federal Prosecution.

Posted by: Orin Kerr | Apr 8, 2016 1:29:10 AM

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