Proxy crimes

• Author: Piotr Bystranowski and Murat C. Mungan
• Position: Assistant Professor, Interdisciplinary Centre for Ethics & Institute of Philosophy, Jagiellonian University, Krakow, Poland/Professor of Law, Antonin Scalia Law School, George Mason University
• Pages: 1-38

LEAD ARTICLE

PROXY CRIMES

†

Piotr Bystranowski* and Murat C. Mungan**

ABSTRACT

“Proxy crimes” is a phrase loosely used to refer to conduct that is punished

only as a means to target other harmful conduct. Many criminal law scholars

find the criminalization of this type of conduct unjustifiable from a retributivist

perspective, while others note that proxy criminalization can contribute to mass

incarceration and overcriminalization. Given the importance of these problems,

a systematic analysis of proxy crimes, currently absent in the criminal law litera-

ture, is needed.

In this article, we provide a comprehensive analysis of proxy crimes by (i) sur-

veying the existing literature and identifying gaps in prior analyses, (ii) propos-

ing a simple yet useful definition of proxy crimes, (iii) identifying three specific

categories of proxy crimes, and (iv) conducting an economic analysis of proxy

criminalization which allows us to identify conditions under which proxy crimi-

nalization is socially (un)desirable. Finally, in light of our analysis, we present

and discuss a specific affirmative defense that can be made available to defend-

ants charged with a proxy crime. We explain how legislators can better balance

the social benefits and detriments of proxy criminalization through that affirma-

tive defense.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. DEFINING AND CATEGORIZING PROXY CRIMES . . . . . . . . . . . . . . . . . . . 9

A. Two Existing Conceptions of “Proxy Crimes”. . . . . . . . . . . . 10

1. Proxy Crimes as Over-Inclusive Offenses . . . . . . . . . . . . 11

2. Proxy Crimes as a Means of Reducing the Evidentiary

Burden. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. An Alternative Definition and Three Types of Proxy Crimes . . 19

† We thank Gwendolyn Ghiloni and Benjamin Hyman for excellent research assistance. Piotr Bystranowski

received funding from the National Science Centre, Poland (Grant 2016/23/N/HS5/00928).

* Assistant Professor, Interdisciplinary Centre for Ethics & Institute of Philosophy, Jagiellonian University,

Krakow, Poland; Ph.D., Jagiellonian University; LL.M., University of Haifa, University of Bologna, University

of Hamburg; M.A., Jagiellonian University. © 2021, Piotr Bystranowski and Murat C. Mungan.

** Professor of Law, Antonin Scalia Law School, George Mason University; Ph.D., Boston College,

Department of Economics; J.D., George Mason University School of Law, M.A., Boston College, Department of

Economics.

1

II. AN ECONOMIC THEORY OF PROXY CRIMINALIZATION . . . . . . . . . . . . . . . 23

A. Social Gains from Proxy Criminalization . . . . . . . . . . . . . . . . 24

B. Social Harms Due to Proxy Criminalization . . . . . . . . . . . . . . 27

III. FACTORS AFFECTING THE DESIRABILITY OF CRIMINALIZATION . . . . . . . . . 28

IV. AFFIRMATIVE DEFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

INTRODUCTION

Over 1.4 million people (or 539 people per 100,000 adult U.S. residents) were

incarcerated in American prisons and jails, as of the end of 2017.

1

While this was a

noticeable decline from the peak in 2008,

2

the United States still puts more people

behind bars than any other country in the world.

3

Roughly one in every four

inmates in the world is American.

4

Academics,

5

journalists,

6

activists,

7

and others

frequently refer to this problem as “mass incarceration.” Some scholars argue that

long prison sentences are a primary cause of mass incarceration.

8

Others have

noted that the fundamental problem is not only about too much punishment

imposed for violating legitimate criminal statutes, but also about imposing punish-

ment for violating criminal statutes that should not exist in the first place. The latter

argument is that States criminalize too much conduct that arguably should not be

criminal—a phenomenon referred to as overcriminalization.

9

1. E. ANN CARSON, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2019 (2020).

2. Over 1.6 million U.S. residents were incarcerated in 2008. Id.

3. ROY WALMSLEY, WORLD PRISON POPULATION LIST (10th ed. 2013), https://www.prisonstudies.org/sites/

default/files/resources/downloads/wppl_10.pdf.

4. ROY WALMSLEY, WORLD PRISON POPULATION LIST (8th ed. 2009), https://www.prisonstudies.org/sites/

default/files/resources/downloads/wppl-8th_41.pdf.

5. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (10th

ed. 2020) (analyzing mass incarceration as a system of “racialized social control”); Todd R. Clear, Imprisoning

Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (2009) (describing the

effect of mass incarceration on neighborhoods in which large numbers of inhabitants have been imprisoned);

Bert Useem & Anne Piehl, Prison state: The Challenge of Mass Incarceration (2008) (questioning whether mass

incarceration leads to worthwhile social benefits of crime reduction).

6. See, e.g., Eli Hager, A Mass Incarceration Mystery, WASH. POST: WONKBLOG (Dec. 15, 2017), https://

www.washingtonpost.com/news/wonk/wp/2017/12/15/a-mass-incarceration-mystery/.

7. See, e.g., ACLU, Mass Incarceration, https://www.aclu.org/issues/smart-justice/mass-incarceration (last

visited Jan. 29, 2021).

8. See, e.g., JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE

BETWEEN AMERICA AND EUROPE 37, 57 (2005) (attributing mass incarceration to the relative ease with which the

American criminal justice system puts people behind bars for violations that rarely result in a prison term in other

Western countries).

9. See Darryl K. Brown, Prosecutors and Overcriminalization: Thoughts on Political Dynamics and a

Doctrinal Response, 6 OHIO ST. J. CRIM. L. 453, 453 (2008) (“[O]vercriminalization . . . mean[s] overlapping or

reduntant crimes and excessive punishment . . . .”); DOUGLAS N. HUSAK, OVERCRIMINALIZATION: THE LIMITS OF

THE CRIMINAL LAW 3 (2008) (“[T]he most pressing problem with the criminal law today is that we have too

much of it.”); Paul J. Larkin, Public Choice Theory and Overcriminalization, 36 HARV. J.L. & PUB. POL’Y 715,

719 (2013) (referring to overcriminalization as “the use of the criminal law to punish conduct that traditionally

would not be deemed morally blameworthy”); Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L.

REV. 703, 717 (2005) (“[T]he overcriminalization phenomenon consists of: (1) untenable offenses; (2)

2 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:1

One of the main factors contributing to overcriminalization is the constantly

growing number of mala prohibita offenses

10

and regulatory offenses.

11

While

criminal law has traditionally focused on core offenses

12

or mala in se

13

—prohib-

ited conduct commonly assumed to be immoral, such as murder, theft, or rape—

many modern offenses proscribe conduct that would be considered completely in-

nocuous were it not regulated or prohibited by law. The proliferation of these

offenses, which are not grounded in conventional morality, not only results in con-

fusion on the part of citizens,

14

but also in a decline in the general legitimacy of the

criminal law and its power to stigmatize offenders, which in turn may diminish its

deterrent effect.

15

If criminal statutes ban so much conduct that otherwise law-

abiding citizens can easily violate them, then the criminal law “no longer distin-

guishes ‘us’ from ‘them.’”

16

Scholars have recently noted that much of the expansion of criminal law can be

attributed to the existence of what they call “proxy crimes.”

17

Proxy crimes are

superfluous statutes; (3) doctrines that overextend culpability; (4) crimes without jurisdictional authority; (5)

grossly disproportionate punishments; and (6) excessive or pretextual enforcement of petty violations.”).

10. Mala prohibita offenses are those that proscribe conduct that is “not wrongful prior to and independently

of law.” Douglas N. Husak, Malum Prohibitum and Retributivism, in DEFINING CRIMES: ESSAYS ON THE SPECIAL

PART OF THE CRIMINAL LAW 65, 66, 69 (R.A. Duff & Stuart P. Green eds., 2005); see also Stuart P. Green, Why

It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses,

46 EMORY L.J. 1533, 1535 (1997) (analyzing the moral status of regulatory mala prohibita).

11. See Antony Ogus, Enforcing Regulation: Do We Need the Criminal Law?, in NEW PERSPECTIVES ON

ECONOMIC CRIME 42 (Hans Sjo

¨gren & Go

¨ran Skogh eds., 2004) (critiquing the extent to which criminal law is

used in regulatory contexts); Mireille Hildebrandt, Justice and Police: Regulatory Offenses and the Criminal

Law, 12 NEW CRIM. L. REV. 43 (2009) (arguing that punishment for regulatory offenses should be imposed under

the same principles as in traditional criminal law); Daniel Ohana, Regulatory Offences and Administrative

Sanctions: Between Criminal and Administrative Law, in THE OXFORD HANDBOOK OF CRIMINAL LAW 1064

(Markus D. Dubber & Tatjana Ho

¨rnle eds., 2014).

12. GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW (1978) (introducing the idea that criminal law consists

of a core and peripheries); Douglas N. Husak, Crimes Outside the Core, 39 TULSA L. REV. 755 (2004) (analyzing

possible methods of identifying the core of criminal law).

13. Mala in se offenses are those that proscribe conduct that is wrongful prior to and independently of law.

See Husak, supra note 10, at 69; Green, supra note 10, at 1571.

14. Because nobody, not even criminal lawyers, can keep track of all the possible ways one can violate

criminal law these days, it is hard to believe that any fair notice is given to potential offenders.

15. See, e.g., Murat C. Mungan, Stigma Dilution and Over-Criminalization, 18 AM. L. & ECON. REV. 88

(2016) (formalizing the idea that the criminalization of minor offenses can dilute the stigma associated with

criminal records and thereby reduce the deterrence of more serious crimes); John C. Coffee Jr., Does Unlawful

Mean Criminal: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193

(1991) (arguing that blurring the distinction between criminal law and tort law undermines the public perception

of the former as legitimate and deserving of compliance).

16. HUSAK, supra note 9, at 24.

17. See, e.g., Richard H. McAdams, The Political Economy of Entrapment, 96 J. CRIM. L. & CRIMINOLOGY

107, 159–60 (2005) [hereinafter McAdams, Entrapment] (introducing the idea that proxy crimes criminalize

behavior that, “while not inherently risking harm, stands in for behavior that does risk harm”); Richard H.

McAdams, The Political Economy of Criminal Law and Procedure: The Pessimists’ View, in CRIMINAL LAW

CONVERSATIONS 517 (Paul H. Robinson, Stephen Garvey & Kimberly Kessler Ferzan eds., 2009) [hereinafter

McAdams, Pessimists’ View] (discussing the undesirable consequences of the growth in the number of proxy

crimes in the criminal law system); MICHAEL S. MOORE, ACT AND CRIME: THE PHILOSOPHY OF ACTION AND ITS

2022] PROXY CRIMES 3