Overcriminalization: The Limits of the Criminal Law.

• Author: Brown, Darryl K.
• Position: Book review

OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW. By Douglas Husak. Oxford and New York: Oxford University Press. 2008. Pp. x, 231. $49.95.

INTRODUCTION

It is a bizarre state of affairs that criminal law has no coherent description or explanation. We have standard tropes to define criminal law, but they obscure as much as they clarify and are honored in the breach as much as the rule. Crimes, for instance, are defined by wrongdoing and culpability; to be guilty, one must do a wrongful act in a blameworthy manner, that is, as a responsible agent without excuse or justification. And crimes define public wrongs, which are distinct from private wrongs. Further, we criminalize only harmful conduct, or risk-creating conduct, or immoral conduct, or conduct the criminalization of which carries an expressive message of public values. And criminal law's function is to prevent crime, or to achieve justice through retribution, or both. But none of this gets us very far, either as a matter of conceptual clarity or descriptive accuracy regarding our actual collection of criminal laws. Lots of immoral and harmful conduct is not criminal; (1) lots of harmless and morally neutral conduct is criminalized. (2) The concept of "harm" itself so eludes definition that it has been employed to describe all manner of conduct with no tangible or emotional injury, no victim, and no significant risk creation. (3) Similarly with "wrongdoing." Core cases are plain, but the line between public and private wrongs--crimes versus civil wrongs--has no widely shared definition, and no foundation beyond shared intuition. And if one accepts an expressive function for criminal law regardless of the harmfulness of the relevant conduct, the category of "crimes" grows even larger. The standard assumption is that, to be culpable for a crime, one must have a mental state that demonstrates knowledge, awareness, or voluntary will regarding one's conduct and its possible consequences. But crimes with no mental-state requirement abound. (4)

The resulting incoherence is widely recognized. Without conceptual boundaries such as criminalization solely of harmful, fault-based, culpable conduct, criminal law can sprawl widely, defying theoretical description as well as practical limits. The problem is not limited to the United States. Take this description from an Australian: "Crime is not a unidimensional construct. For this reason one should not be overly optimistic about a general theory which sets out to explain all types of crime." (5) Consider this from a Briton: "The various definitions of crime ... lack coherence, they jostle uncomfortably together, overlap, correspond, and contradict." (6) An American offers a comparable view: "American criminal law's historical development has borne no relation to any plausible normative theory--unless 'more' counts as a normative theory." (7) The result is overcriminalization, complaints of which are both widespread and long standing--one can find them at least four decades ago, before the recent growth in federal criminal law. (8) A half-century ago, before recent overcriminalization complaints, a leading Anglo-American criminal scholar concluded we can only define crimes self-referentially as acts "capable of being followed by criminal proceedings, having one of the types of outcome (punishment etc.) known to follow these proceedings." (9) Which is to say, a crime is whatever a legislature says is a crime.

How did this state of affairs come about? At one level, the answer is straightforward: in the modern era, legislatures create crimes, and legislatures do not abide by a consistent set of principles regarding what matters are appropriate for criminalization. They employ criminal law purely instrumentally, as a tool for achieving whatever end majorities choose to pursue. More interestingly, courts have never developed significant constitutional doctrines for checking legislatures' crime-creation choices, even as they developed a range of doctrines to review legislative action in any number of other topics, and in the process of regulating other topics--speech, privacy rights, property and contract rights, rights to fair notice, weapons possession--they have overturned hundreds of criminal laws. Perhaps most surprising, however, is that criminal law theorists have given relatively little attention, until quite recently, to theories of criminalization. If courts and legislatures had sought a source of guidance on how to construct and limit criminal law coherently, they would have had relatively few sources to which to turn.

Into this morass steps Douglas Husak, (10) a leading philosopher of criminal law, with what now probably stands as the most ambitious effort to defend workable normative parameters for criminalization--the baseline from which "overcriminalization" can be measured--and to offer a coherent approach, built on familiar doctrinal terms, for courts and legislatures to employ in defining and revising criminal law. Building on his years of scholarly work on related issues, Husak's book Overcriminalization sketches the components of a theory for defining the limits of what sorts of conduct should or should not be subject to criminal punishment. Remarkably, this sort of theory is nearly nonexistent as a matter of common or constitutional law, and even as a theory designed as a policy proposal it has few peers. For the importance and difficulty of the topic alone, as well as the skill with which it is developed, Husak's book is a significant contribution.

Still, it is not clear Husak's effort is a promising one, as a practical matter, to ameliorate the incoherence of crime definition, a point even Husak might concede. Although he builds his theory in part on judicially created constitutional doctrine, Husak offers his thesis foremost as guidance to legislatures, in hopes they will police their own criminal lawmaking by adherence to a clarified set of normative commitments, rather than as a theory of judicial review by which courts might more meaningfully limit criminal lawmaking (p. 131). This is an interesting choice, one that departs from other (less developed) proposals for addressing overcriminalization. (11) It is worth exploring why one would make this choice, given the seemingly dim prospects for legislative self-constraint on crime creation. I will develop one view, in Part II, which suggests that such constraint is only realistically possible with institutional changes in the legislative process. Legislatures' problems are not so much that principles that should limit criminal law lack clarity, but that their institutional structure typically makes principled rather than majoritarian (12) action unlikely. But institutional change is not the only premise for hope of better prospects for legislative reform of criminal law, as I explore below. Democratic politics holds more promise for contraction of criminal law than many, including Husak, imply. Interestingly, that is because some of the terms of Husak's theory of criminalization are already familiar terms of argument in popular criminal law debates. Nonetheless, despite some promise for legislative progress, other questions remain: why have courts not stepped in to limit crime definition constitutionally, and why shouldn't they?

In Part III, I will offer a hypothesis about why Husak, unfortunately, probably correctly estimates the minimal role courts could play in addressing the problem of overcriminalization--at least, the problems of overcriminalization that Husak is most concerned about, which means crimes that still lack substantial popular opposition. Husak, to his credit, picks no low-hanging fruit; his focus is on the most difficult arguments of excessive criminalization, especially drug crimes. The nature of those offenses tells us something about why courts are unlikely agents to restrain them, and also about the role of normative theory in constitutional law and political change. In short, courts are less likely to strike down criminal laws without indicia of popular and legislative support for such moves. But when that support exists, legislatures eventually do much of the decriminalization work themselves, reducing the need for judicial intervention. There are, however, pieces of the overcriminalization puzzle that are less amenable to democratic attention than others, and in those instances, courts might plausibly play a more active role even without first taking signals from legislative innovations. Part IV assesses how much a remedy for overcriminalization might affect the related but separate problem of excessive incarceration.

1. HUSAK'S THESIS

   Much of the literature lamenting overcriminalization cites a range of seemingly silly crimes as examples: the crime of using the "Smokey Bear" image without authorization, disturbing mud in a federal cave, or, more seriously, adult consensual-sex offenses (13) Others cite statutes that bar potentially more harmful conduct, such as deceptive commercial practices, that nonetheless seem dubious as crimes either because the offenses are defined as strict liability (14) or because they address activity that seems more plausibly (and often is actually) regulated by civil or administrative law. (15) Husak acknowledges these crimes are examples of overcriminalization but spends little time on them because they are rarely enforced. He focuses instead on "laws that actually are enforced with some degree of regularity" and thereby contribute to excessive punishment (p. 35). Again, his focus is on more difficult claims of overcriminalization, primarily drug crimes.

   Drug crimes are important because, unlike these foregoing examples, they actually account for a sizeable portion of federal and state convictions and are the basis for a significant percentage of incarcerated offenders who make up by far the largest population of prisoners in the industrialized world or in American history...