In order for the criminal law to be a moral force, it must be mindful of the circumstances under which the accused come before it. Some are truly disadvantaged. Some are unlucky. Some have run out of choices. Some are unwitting lawbreakers, notwithstanding the ease with which intent may be proved at trial.

Those of us who want to see the law as a moral force believe that the “law should not convict unless it can condemn.” Before we sit in condemnation, we ought to assess whether society’s own conduct in relation to the actor entitles us to do so. If moral condemnation were the basis for criminal punishment, we would have to consider whether fourteen-year-old Leroy Williams, raped before he could formulate the words to express the horror of what it means to be raped, freely chose to do wrong. If moral condemnation were the basis for criminal sanctions, we would have to consider whether twenty-year-old Lisa Grimshaw, physically and psychologically abused by every man in her life from her father on, freely chose to do wrong.