There is a thin line between creativity and crime. In an era of scholarship where there is a deluge of books, articles, and commentary on mass incarceration, prosecutors, policing, and the nuances of crime and social justice, Professor Esther Hong dares to be creative. Hong skillfully weaves together the criminal sociology of Émile Durkheim with modern neuroscience and legal standards to persuasively argue that creativity and criminality often overlap. She explores what that means for the overcriminalization of youth and the insatiable human pursuit of progress.
In The Age of Creativity and Crime, Hong is taking a path less traveled that lies at the intersection of sociology, child development, science, and criminology. And the payoff is incredibly worthwhile. In the piece, Hong argues that there are aspects of criminal law that set arbitrary boundaries between positive creativity and negative criminal activity. She does this by relying on the sociological literature that has found many links between the character traits of creativity and those of criminality. People that fall into the “creative” or “criminal” category both refuse to follow set norms, have a distrust of authority, and tend to think outside of the box to solve common problems. How much difference is there between a person who expresses their artistic creativity by splashing art on a canvas when compared to a similar artist splashing art on the side of a commercial building? One is considered a positive creative influence, while the other is criminalized as a defendant creating blight. Hong’s contribution is to highlight the similar character traits shared by those acting on the spectrum of what society considers as positive progress versus what society considers as criminal harm.
Hong focuses her theoretical claims by explaining its significance for teenagers and young adults in the criminal legal system. Scholars of old have used well-worn principles from developmental science and neuroscience to show that the prefrontal cortex of the brain that is responsible for impulse control does not fully develop until the early to mid-twenties. Hong takes this understanding and adds to it, expanding it with studies on creativity during this developmental period. These studies show that creativity is at its highest during these crucial young adult years. Thus, one might say that the lack of impulse control in these young years is part of a natural superpower that young people have; they have yet to fully develop cognitively, which means they have yet to consider and internalize all of the rules, restrictions, and authority figures necessary for the functioning of society. The malleability of the brain during child development is a wonderous thing that allows young people to learn multiple languages and develop problem-solving techniques much faster than adults can. Consequently, the negative lack of impulse control that contributes to criminality must be balanced with nurturing youthful yearning to express creative impulses.
Hong next makes an even bolder contribution by asserting that both creativity and criminality play important roles in social development and progress. It is not controversial to affirm creativity, ingenuity, ambition, and related entrepreneurial traits that contribute to human progress. But crime?
The idea that there are latent social benefits of crime that forward moral progress is a controversial one, but one that finds support in a larger consideration of the role that criminal law plays in society. Durkheim used the timeless example of Socrates, who he believed was “justly” put to death for a legitimate crime of corrupting the youth of Athens. But the creativity and intellectual contributions of Socrates—which were integral to his crime—were critical to the development of Western thought, and ultimately helped towards shifting morality to decriminalize such crimes in the future.
The broad point of Hong, who echoes Durkheim, is that criminalizing certain actions forces society to make hard moral judgments, which inevitably results in mistakes. The harshness of the criminal law is what helps mold our collective moral compass towards justice. Is it right to hang someone if they accidentally kill another, or to lock somebody up for life for selling large amounts of narcotics? Murder will always be murder, but the common law has developed over many centuries to distinguish between various grades of culpability. Modern times have seen a radical shift in the decriminalization of marijuana use. Defining crimes and punishment forces us to make judgment calls on the abstract lines between acceptable and abhorrent behavior, and forces us to make moral progress when we discover errors in these judgments.
These theoretical and scientific arguments are perhaps best illustrated with examples. The tech industry is a gift that keeps on giving in this regard, and serves as a powerful case study for the often-overlooked connection between the celebration of creativity, the punishment of criminality, and the role both play in social progress. I believe the most salient example is that of Mark Zuckerburg, who famously started his empire as a college student by hacking Harvard databases to help facilitate the first iteration of Facebook. Legend says he also recruited hackers to work for him, finding this rogue computer programming skillset to be valuable to the type of company he was trying to build. Not only did hacking demonstrate an extremely high proficiency for reading and writing computer code, but it also showed a youthful and deviant form of swashbuckling that broke the rules of the old world in order to build a new world.
Hong herself also turns to the tech industry to illustrate her theoretical contributions by detailing the rise and fall of Sean Parker and Elizabeth Homes. Parker started Napster when he was 19-years-old, and he dreamed of a world where music could be shared for free. But his infamous business model was illegal because it flouted copyright law. Holmes also founded her company, Theranos, at a young age, but her dreams and ambitions of building a new standard for medical testing caused her to cross the line into criminality when she mislead investors. I would be remiss if I didn’t add the recent rise and fall of Sam Bankman-Fried to this list, whose innovations in cryptocurrency markets turned into a death-spiral of misappropriating client funds. Indeed, a handful of other fellow Forbes 30 under 30 alums have gone on to be indicted for a host of financial and white-collar crimes.
Hong next seeks to convert these theoretical contributions into practical takeaways in criminal policy. One of Hong’s suggestions is to carefully categorize different types of crimes in order to determine which types of crimes overlap the most with creativity in order to rethink overpunishing or otherwise deterring creative outlets. My own thoughts tangentially align with Hong’s, because I too think different crimes—whether they overlap with creativity or not—should be treated differently. Perhaps most importantly, this categorization requires the separation of causation and correlation.
First, there are crimes that are caused by creativity because the creative activity is intertwined with the criminal act. Zuckerberg’s hacking, Parker’s disregard of copyrights, and the street artist’s mural would fall into this category. I see these as the strongest cases for Hong’s position because the creative outlet of these young adults is considered in and of itself a crime. But there are weaker, correlative examples, where creative personality types engage in criminal behavior that is unrelated to their creative outlet. This might be explained because creative people, or those exercising their young-adult creative superpower, are generally disruptive and go against the flow of normality; therefore, somebody who shows extreme creativity in their business might also disregard legal rules for a number of reasons. They might be operating under the entitlement that such legal rules do not apply to them, or they might see such legal rules as getting in the way of developing their creative vision. I would put Holmes and Bankman-Fried in this category. The ultimate takeaway is that understanding the relationship between creativity and criminality can help us chart a new path that finds a balance between fostering creativity towards positive social outcomes, and not using the criminal law to unnecessarily punish creative outlets.
Hong’s article is the type of scholarship that pushes the criminal legal field forward. It challenges traditional criminal legal epistemology by considering interdisciplinary connections that add value to the understanding of crime and punishment. Hong’s contribution itself captures the spirit of creativity. And just as it does in the criminal context, this creativity contributes to our progressive social growth.
