Limiting Identity in Criminal Law

People change with time. Personalities, values, and preferences shift incrementally as people accrue life experience, discover new sources of meaning, and form or lose memories. Eventually, accumulated psychological changes not only reshape how someone relates to the world about her, but also who she is as a person. This transience of human identity has profound implications for criminal law. Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. Psychologists, however, now know that the ordinary processes of growth, maturation, and decline alter us all in fundamental respects. Many young adults find it hard to identify with their adolescent past. Senior citizens often reflect similarly on their middle years. However tightly we hold on to the people we are today, at some tomorrow we inevitably find ourselves changed. Criminal justice has not come to grips with this aspect of the human condition. The law—by imposing lengthy sentences, allowing enduring consequences of conviction, and punishing long bygone violations—assumes that people’s identities remain fixed from birth to death. If people do change with time, these policies must violate criminal law’s most basic commitment to prosecute and punish present-day people only for crimes they (and not some different past person) committed. Drawing on contemporary psychology and philosophy of personal identity, this Article concludes that criminal law punishes too often and too severely. Lengthy prison terms risk incarcerating people past the point at which their identity changes. Elderly inmates who have languished on death row for decades should have a new claim for release—that they are now different people, innocent of the misdeeds of yesteryear. One-time felons should recover lost civil rights sooner. And defendants should benefit from juvenile process well into their twenties, when personal identity first begins to stabilize. By confronting the challenges posed by the limits of personal identity, the criminal law can become more just and humane