Convergent ends, divergent means: a response to my critics.

When writing Overcriminalization, I entertained a fantasy about the reaction my book might produce. I hoped that philosophers would not merely criticize my shortcomings but would join me to produce a better theory of the penal sanction to help curb the pernicious expansion in the size and scope of the criminal law. To date, more ingenuity has been expended on esoteric problems such as "impossible attempts" than on the content of the offenses that can be attempted. But the thoughtful responses of my distinguished commentators have led me to believe that my fantasy was not so unrealistic. Unless I am a hopeless Pollyanna, each of the contributors to this symposium is constructive and friendly, helping to advance the inquiry I believe to be overlooked and yet so crucial to the philosophy of criminal law.

This project is important not only for its abstract philosophical interest, but also because of the realities that currently plague our criminal justice system. None of my commentators disputes my contentions that we have too much criminal law and too much punishment, and that these phenomena are closely related. (1) Since only two of my critics reside in the United States, it is worth emphasizing that overcriminalization is rife throughout much of the western industrialized world. In Great Britain, for example, a new criminal offense was created nearly every day between 1997 and 2006. (2) I am certain that several of these statutes are justified--I do not doubt that we are guilty of under-criminalization in a few domains--but I am equally certain that most of these newly minted offenses would fail to pass a respectable test of criminalization.

Any number of strategies might be devised to combat the phenomenon of overcriminalization. My own approach consists in seven constraints that I contend particular statutes must satisfy in order to justify the punishment of those who breach them. Several commentators mention two related problems that I painfully acknowledge. First, they complain that I have done very little to provide content for these substantive constraints. I lack theories of wrongdoing, harm, desert, state interests, and the like. Second, they remark that some of the principles I defend may be wholly redundant. How does a desert requirement, for example, preclude legislation that is not already barred by a wrongfulness constraint? I heartily agree that these two matters require much more work than I have done thus far. A comprehensive theory of criminalization would (a) identify, (b) defend, (c) embellish (that is, provide content for), and (d) apply the normative principles that limit the penal sanction. This task would consume many lifetimes. I claim to have made only the most modest beginning and thus to have set the agenda for a wealth of future research.

Despite my cursory treatment of these fundamental issues, I continue to believe that each of these seven constraints is needed, and that no two are identical. Consider wrongfulness and harm, for example. Whatever else they may be, wrongfulness is a property of actions whereas harm is a result that actions cause. Admittedly, many actions are wrong because of the harm they cause (or risk). But other actions are wrong even though they cause (or risk) no harm. For the record, I do not deny the existence of cases of harmless wrongdoing. Breaking a deathbed promise is a paradigm example. Moreover, wrongless harms exist as well. The losses caused by fair competitions provide excellent illustrations. I do not believe, however, that any such cases should be eligible for penal sanctions. I contend that both wrongs and harms (or risks of harm) should be needed for criminal liability. Desecration of corpses is the only apparent counterexample that troubles me. If a theory of the penal sanction stumbles only on this unusual case, we can be pretty confident that it is on the right track.

I owe an enormous debt to my commentators who have joined in the difficult task of refining a set of principles to narrow the criminal law. I will hazard brief replies to each of my critics seriatim.

A Tale of Two Theories

As I acknowledge throughout Overcriminalization, I have been greatly influenced by the work of Michael Moore. Most recently, I am grateful for his efforts in comparing and cont-casting my theory with his own brand of legal moralism--the most plausible rival to the minimalist theory I have sought to defend. What is striking, as Moore observes, is the extent to which we (as well as just about all of my critics) agree about substantive results. When philosophers who purport to invoke different theories converge so closely about the specific penal laws they believe to be justified or unjustified, readers should be suspicious that intuitions are doing more work than theory. It is hard to find a knowledgeable commentator who does not share the conclusion that modern penal codes are bloated with offenses that cannot withstand normative scrutiny.

Where my theory consists of seven distinct but overlapping constraints, Moore's alternative purports to apply just one a wrongfulness constraint. The version of legal moralism he espouses holds that (prima facie) all culpable wrongs should be criminalized. Expressed somewhat differently, he argues that "giving wrongdoers what they deserve is a sufficient reason for punishment." (3) At face value, Moore's theory appears much simpler than mine. Moreover, it would seem to be more permissive of penal statutes--how can one constraint do the work of seven, especially when his lone principle is included within my larger set? Somehow, however, Moore manages to pull a number of rabbits from a single hat and achieve outcomes that are nearly identical to those I reach. He succeeds in this feat because he supplements his principle with several additional considerations--five, by my count--that must be weighed before a penal law may be enacted. Even though these supplementary principles play a large role in Moore's treatment of actual cases, he persists in claiming that wrongfulness is sufficient for criminalization. The simplicity of legal moralism, as I am fond of saying, is deceptive.

Moore and I concur about many matters. In particular, we agree that any justification of a penal statute must show why the state would be warranted in punishing persons who breach it. Of special interest, however, are the five respects in which Moore observes that our theories diverge. Most of these differences are invoked to show how his theory is able to reach the same (sensible!) conclusions as mine, despite possessing seemingly far fewer resources. I will focus on the two differences I believe to be the most salient. First, unlike Moore, I do not allege that persons deserve state punishment merely because they have engaged in culpable wrongdoing. Only some kinds of wrong--public wrongs--render persons eligible for retribution. Individuals do not deserve state punishment for committing private wrongs--those that the state lacks an interest in preventing. When Jones commits a private wrong--by lying to his spouse, for example the state has no reason to sanction him. (4) Moore certainly agrees that the state should not punish persons who lie to their spouses, but he reaches this conclusion by invoking different principles. He holds that this wrong, like all wrongs, gives the state a reason to punish Jones, but this reason is outweighed by one or more of the principles he invokes to supplement his legal moralism. By contrast, I do not believe that Jones's wrong establishes a presumptive case for state punishment that then needs to be rebutted. We need not appeal to supplementary principles to show why the government should not punish private wrongs, because the commission of these wrongs does not create a prima facie ground for state punishment in the first place.

Moore chides me for not offering a better account of the distinction between public and private wrongs. For the most part, I plead guilty. This task requires nothing less than a theory of state interests, a huge project in political philosophy I should not be too apologetic for failing to undertake. According to my view, we need both political philosophy (which will supply a theory of state interests) and moral philosophy (which will supply a theory of wrongs) to construct an adequate theory of criminalization. Moral philosophy alone will not suffice. Wrongdoers do not deserve state punishment when the wrongs they commit do not concern the political community in whose name the state acts. Although I lack a theory of private wrongs, it seems fantastic to suppose that the state has an interest in each of the moral issues that govern my behavior with my friends and family. Perhaps Moore and I have different pretheoretical intuitions about the role of the state in a liberal democracy.

Despite conceding that I have little to offer, I believe I have made a bit more progress than Moore acknowledges in drawing the shifting and elusive line between public and private morality. The contrast I am trying to develop is familiar and unexceptional. (5) If I make a promise to you and subsequently break it, you have the standing (as it were) to demand an explanation of my failure. Moreover, I am required to make amends to you--the person to whom my duty is owed. To be sure, I might offer an explanation to anyone, but only you (and perhaps others appropriately related to you) have the right to demand an explanation from me. (6) If someone else insists that I explain myself to him, I am entitled to ignore him. If we agree that the victim of a wrong--Jones's spouse, in the earlier case has the option to demand a response from him and to forgive and forget if she regards his explanation as satisfactory, we believe the wrong to be private. It is not the kind of wrong for which perpetrators can deserve punishment by the state. But if we think that Jones owes a response to the state (as well as to his victim), and would be eligible for punishment despite the willingness of his victim to forgive and forget, we believe the wrong to be public. Criminal wrongs are public wrongs. In the case of criminal wrongs, my response is owed to the state, a point that is crucial in understanding why it has the authority to punish us for our penal offenses.

As I admitted, the foregoing device is not always helpful in categorizing wrongs. One difficulty is that no single theory of state interests will suffice for all time in a given community. Generalizations are perilous here. Circumstances change so rapidly that states gain interests in proscribing some behaviors about which they lacked an interest only a short time ago. The ability to cause noise or air pollution gives us an appropriate concern in what our neighbors do on their land. Even though population growth is not a significant problem in Western industrialized countries today, one could imagine that overpopulation would states an interest in following China's example of limiting family size. But I doubt that Moore really thinks that the contrast I invoke is too hard to draw in all cases, since he appeals to equally murky principles to reach the same conclusion that Jones should not be punished. In particular, he claims that Jones's wrong is minimal, so "the values disserved by criminalization outweigh the minor good achieved by prohibition and punishment." (7) More specifically, Moore invokes a "presumption against criminalizing behaviors because doing so diminishes the freedom of actions of citizens." (8) The values that underlie this presumption include "the goodness of positive liberty to which ... freedom from government coercion is a means; the goodness of Kantian autonomy ...; the goodness of Millian autonomy, which is the inherent value of human choice when made free of coercion; [and] the goodness of satisfying the well nigh universal human preference for unconstrained decision-making." (9) When each of the values is thrown into the hopper and somehow weighed correctly, Moore is equally confident that the state should not punish Jones for lying to his spouse.

I exempt Jones from state punishment for a different reason. For starters, I am skeptical that the foregoing "goods" remain valuable when people use their liberty, Kantian or Millian autonomy, or preference for unconstrained decision making in ways we agree to be wrongful. Would Kant have thought that autonomy is good (or implicated at all) when used to do wrong? But my central reservation about Moore's strategy is more fundamental. Moore is no more able to say how these "goods" should be balanced in a particular case than I am able to contrast the public from the private. If pressed to deliver a general theory of when the various values to which he appeals favor punishment or its absence, I suspect he would have little more to offer than I. Readers will have to decide who has the better explanation for why Jones should not be punished for his wrongful act. Do we really need to weigh several competing principles, or may we conclude straightaway that the kind of wrongful deed Jones perpetrated does not make him eligible for penal liability?

A second related difference between our theories involves our competing explanations for why the state should create institutions of criminal justice to punish offenders. Since I contend that no penal law is justified unless the state directly advances a substantial interest, the ground for establishing an institution of criminal justice is straightforward. It follows trivially from the foregoing requirements. Moore, by contrast, claims his "theory is retributivist in its justification of punishment and punishment institutions: we justly punish because and only because offenders deserve to suffer for their culpable wrongdoings." (10) I concede that the value of achieving retributive justice may give the state some reason to establish a system of penal justice. This reason, however, is miniscule. Taxpayers are entitled to resist when asked to pay the astronomical costs of treating offenders as they deserve. In persuading citizens to create institutions of criminal justice, Moore is happy to point out that these institutions have benefits other than attaining retribution. In particular, these institutions "achiev[e] the benefits of crime-prevention and expression of censure that Husak claims." (11) He continues: "What must be shown is that the goodness of achieving retributive justice is sufficient to outweigh the net balance of costs and [these] other benefits of setting up punishment institutions." (12) Unlike me, however, he persists in denying that crime-prevention plays a central role in the justificatory case for establishing a system of criminal justice. The value of attaining retribution alone is said to be sufficient to justify the creation of these institutions. But is it? My theory provides a more direct role for prevention in a justification of the penal sanction. Good consequences are not a collateral benefit that our institutions of criminal justice just happen to produce. They are central to the case for creating these institutions in the first place.

Although our disputes are not quibbles, I am pleased that Moore found more in Overcriminalization with which to agree than to disagree. Legal philosophers can and should pay careful attention to our differences, but they must not be exaggerated. At bottom, our attempts to limit the penal sanction are strikingly similar.

Paternalism on Pain of Punishment

I have gained a deeper understanding of my own views and how to improve them--by reflecting on Heidi Hurd's magnificent critique. Although she does not explicitly package her approach as a rival theory of criminalization, Hurd notes that what is "missing" from my analysis "is a defense of a right to liberty on the part of citizens." (13) She states that such "a general theory about personal liberty" might "ultimately yield a more compelling account of the coercive power of a just state one that would police against over-criminalization even better than a theory that rests on Husak's proposed rights against punishment." (14) My overall reaction to Hurd's comments is that I can incorporate much of them into a better theory than I provided initially. Nothing she defends is inconsistent with my approach, and my substantive conclusions differ little from her own. Again, we reach similar destinations by taking different routes.

Hurd is correct that my project affords a central role to the right not to be punished rather than to a right of personal liberty. Although I argue, for example, that laws that prohibit persons from using recreational drugs are almost certainly unjustified, I am less confident that persons have a right to use cocaine than that persons have a right not to be punished for using cocaine. Thus I do not allege that drug proscriptions violate liberties (or a right to use drugs) with which the state should not interfere. Perhaps citizens have a right to use drugs that drug proscriptions violate; nothing I say entails otherwise. But punishments, I am sure, implicate basic and important rights, whereas cocaine use probably does not. Why does this distinction matter? If persons had a right to use cocaine, and not merely a right not to be punished for using cocaine, every kind of interference with the former right would be prima facie objectionable. Suppose the state withheld given privileges or denied specified benefits to cocaine users. These practices would require a powerful rationale--a small gain in utility would be insufficient to justify them--if cocaine use itself were protected by a right. What I contend, however, is that the mode of interference achieved through the penal sanction infringes more valuable rights than the foregoing non-punitive responses. Simply put, the criminal law is different. What is different about the criminal law is that it subjects persons to state punishment. Subjecting persons to punishment requires a much more powerful defense than other types of sanction. The constraints I defend in Overcriminalization describe the conditions under which persons may be subjected to punishment for engaging in given behaviors.

I am somewhat unclear whether Hurd agrees that the criminal law is different from other modes of interference with liberty. Although she mostly downplays the distinction between penal and non-penal deprivations, she writes: "Of course, we enjoy greater liberty when we are spared its loss as a means of punishment, and hence, those who are interested in the state's legitimate ability to deprive us of liberty must be interested in the degree of liberty that can be extracted from a right against punishment." (15) If I understand this passage correctly, it seems that Hurd concurs that principles of criminalization can be teased from a right against punishment. Obviously, that is the project I undertook in Overcriminalization. But I did not take myself to be denying that objections to state authority could be derived from other sources.

One potential source is the right to liberty that Hurd defends. She misunderstands me if she believes I am committed to rejecting such a right. Hurd notes the oddity (which I acknowledged) of saying that "the vicious killer ... has a right not to be punished notwithstanding his wicked deed." (16) I made this claim because I supposed that the reasons that are required to punish persons who kill must be just as strong as the reasons to punish persons who commit any other crime a point that is easy to overlook inasmuch as the reasons to punish killers are so obvious. I do not believe, however, the claim she attributes to me: that "the vicious killer's right not to be punished is as robust after his killing as is the right of a couple to make procreative decisions, or the right of a person to attend the church of his choice." (17) What I do believe, by contrast, is that the vicious killer's right not to be punished for his vicious killing is as strong as is the couple's right not to be punished for procreating or the church-goer's right not to be punished for attending the church of his choice. When the state subjectspersons to punishment--that is, when the criminal law is invoked--precious rights are always jeopardized. These rights may be overridden only by the enforcement of laws that satisfy the constraints in my theory of criminalization. Needless to say, these rights are overridden when the state punishes murderers, but would not be overridden were the state to punish persons for making procreative decisions or for attending church. Even though I said that important rights are infringed whenever the state imposes punishments, I should not have been interpreted to think that the liberty to kill is just as valuable as the liberty to procreate or to attend church. In short, I agree with Hurd that a defense of various liberties would yield additional restrictions on the authority of government. I do not resist but actively welcome her project of deriving "checks on state power from a theory of personal freedom." (18) Such a theory would yield further reasons to limit state authority, whether or not that authority is exercised in the criminal domain. Thus the theory of liberty she skillfully defends can supplement my own account to produce a more comprehensive set of limitations on government interference. If Hurd's theory of personal liberty is cogent, I would be delighted to borrow it.

Criminal paternalism presents one of the most pressing challenges for a theory of the penal sanction. Is the state ever warranted in punishing persons in order to prevent them from engaging in conduct that causes harm (or risks causing harm) to them? Intuitions play a major role in answering this question. Since Hurd regards paternalism as "a test of the relative merits of these alternative approaches" to criminalization, (19) suspect she believes that sound normative principles condemn all paternalistic interferences with sane adults. My own intuitions about paternalism are more ambivalent. I have little objection, for example, to state actions designed to discourage tobacco consumption for the good of smokers. What bothers me is not so much paternalism per se as paternalism in the criminal domain. As Hurd notes, at least three of my constraints conspire to show why punishment is rarely justified for paternalistic reasons. She critiques my approach as "less elegant" than her view that "the law cannot prohibit what morality permits, where that includes a great deal of behavior that may be risky or harmful to one's own interests." (20) If Hurd is correct about morality--and she very well may be reasons to oppose criminal paternalism are even stronger than those I provide.

According to Hurd, the three principles I bring to bear against criminal paternalism are too "complicated" and "empirically-dependent." (21) I do believe that the case against criminal paternalism is complex and dependent on contingent facts. Let me review my reasoning. First, I claimed that the wrongs that involve harm to self are rarely public wrongs. Like Moore, Hurd "cannot get a firm grip on the distinction [I draw] between public and private wrongs." (22) Whereas I am inclined to think that a great deal of conduct that risks harm to self is wrong but not the kind of wrong that concerns the state, Hurd apparently denies that such conduct is wrong at all. As I have indicated, my intuitions are less clear that morality permits very risky behavior. (23) If the conduct that risks harm to self does concern the state, however, I invoke a second constraint against criminal paternalism by speculating that the government's interest in preventing that harm may not qualify as "substantial." Hurd worries that this requirement would do "little to constrain paternalistic legislation." (24) Since I confess that I lack a theory of state interests as well as criteria to decide whether these interests are substantial, I acknowledge that it is hard to know whether the application of this second constraint would produce significant restrictions on criminal paternalism. I am left only with my suspicions about what kinds of state interest rise to the level of substantiality. Finally, in Overcriminalization I objected to criminal paternalism on the ground that the state would be unlikely to achieve any substantial interest it may have in preventing harm to self by punishing persons who violate paternalistic laws. I contended that "the punishment for violating a criminal law is almost always more detrimental to an offender than is the harm that he causes or risks to himself by engaging in the proscribed behavior." (25) I conjectured that Rocky would suffer less harm by being free to box than by enduring any punishment that was likely to deter him from boxing. Hurd questions my empirical conjecture. She writes: "Given the extraordinary toll that boxing takes on a boxer's health and longevity, it would be plausible to think that if Rocky's predilection for boxing could be cured by a year in jail, it would be in his long-term interests to endure the year in jail." (26) I bet that I am right and Hurd is wrong about the outcome of this empirical question. Among other things, I doubt that a year in prison would cure (but would probably fuel) a predilection for boxing. I have no idea how to resolve this empirical disagreement, although I hasten to add that I assign the burden of proof on such matters to the state. I did admit that some types of conduct--like gladiatorial contests to the death--might be so risky that persons will be better off if they are prevented by punishment from engaging in them. If Hurd is correct about boxing, then my final principle would not condemn a paternalistic law that punished this activity. In any event, I continue to believe that empirical judgments are needed to apply a theory of criminalization generally--and to pass judgment on paternalistic interferences in particular--however difficult it may be to make the calculations accurately.

If Hurd can make a convincing case that the liberty interests infringed by paternalistic legislation are especially valuable, then the state has more reasons than I list to be skeptical of laws that punish sane adults who take risks to their safety and welfare. I do not deny that she might succeed. Hurd's thoughtful approach might supplement my own, but she does not construct a rival view that suggests my theory must be rejected.

The Architecture of Criminalization

I would like to reply to two of the challenges posed by Victor Tadros. First, he insists that an adequate theory of criminalization must be concerned not simply with ideal principles but also with "the nonideal consequences of criminalization," that is, with the effects that a criminal offense is likely to have in the real world. He complains that my several constraints are "for the most part overly ideal." (27) In evaluating a given criminal offense, I should not only "consider what its implications would be were everyone to conform to what it requires," but should also attend to "what will in fact happen knowing both that some citizens will breach it, and that some public officials will make mistakes with respect to the responsibilities it gives them, what we might call its non-ideal implications." (28)

I agree with Tadros that an adequate theory of criminalization must attend to these non-ideal realities. Although I am sure I could have done more to address these matters, I think it is unfair to allege that my theory lacks the resources to meet the challenge that Tadros presents. Consider my motivations for developing a theory to restrict the scope of the penal law. The two primary reasons to be worried about overcriminalization, I argued, are, first, its effects on rates of punishment, and, second, its tendency to erode the rule of law. Clearly, neither of these consequences could materialize if everyone conformed to the law. In a world of perfect compliance, no one would have to be punished, and legal officials would have no occasion to exercise their discretion to decide which offenders to arrest and prosecute. My entire project is driven by my awareness of what Tadros calls the non-ideal implications of penal law.

On a more concrete level, the second of my external constraints on criminalization specifies that a law is unjustified unless it directly advances the government's objective. I contend that serious efforts to apply this principle would require penal theorists to engage in empirical inquiries with which legal philosophers are relatively unfamiliar. These inquiries involve the very sorts of questions raised by Tadros's non-ideal concerns. If the criminal law in question is designed to deter, we must have some reason to believe that it will actually reduce the incidence of the conduct proscribed. In my book, I offer three reasons to doubt that drug proscriptions--Exhibit A in the case for overcriminalizafion--successfully deter. First, persons of the very age who tend to tend to consume the greatest quantities of drugs--those between 16 and 25--are particularly susceptible to a forbidden fruit effect, and are attracted to illicit substances partly because they are illegal. Second, a proscription of a given drug, insofar as it is effective, causes substitution effects, leading persons to consume substances other than those that are banned. Third, most punishments are criminogenic, exacerbating the very tendencies that lead people to abuse drugs in the first place. Although each of these points is subject to debate, evidence in their favor continues to accumulate. (29) I repeat them because they demonstrate my keen interest in what Tadros describes as non-ideal theory. We are allies rather than adversaries in believing that legal philosophers must be sensitive to the fact that our criminal justice system operates in a world of imperfect compliance.

My second response to Tadros addresses his skepticism about the harm principle. He is correct, of course, that legal philosophers interested in criminalization have long been obsessed with the harm principle and differ about how it is best construed. Little consensus has been reached. Although I make no serious effort to provide the most plausible interpretations of what Mill, Feinberg, or anyone else may have had in mind when they endeavored to explicate the harm principle, I have constructed a novel argument for why that constraint must be retained in a theory of criminalization. I contend that we could not understand or apply a number of familiar defenses to liability unless we suppose that each and every penal offense prevents a harm. Consider necessity, for example. Roughly, a defendant has a necessity defense for a statutory infraction when he causes (or risks) less harm than the statute is designed to prevent. Clearly, this defense would be unintelligible unless given statutes are designed to prevent a harm (or the risk of harm). If we allow offenses within our code that are not designed to prevent harm, we would have no idea how a given defendant could possibly have a necessity defense for violating them. Thus criminal theorists cannot simply abandon a harm constraint after noting the enormous disagreement about how it should be construed. We cannot afford to be skeptics who, like Tadros, lament "I'm not sure whether there is a rendition of this constraint that steers a plausible path between the extremes." (30) If I am correct, we have no choice but to develop a substantive account of harm. Obviously, I make only the smallest progress toward this goal in Overcriminalization. (31)

In sum, I believe that Tadros and I are on the same page in appreciating the relevance of non-ideal theory to the philosophy of criminal law. But we should not allow our interest in non-ideal theory to blind us to the importance of more traditional concerns about harm. A viable theory of criminalization must be sensitive to both.

The malum prohibitum Offense of Money Laundering 

Robert Young offers a very different kind of criticism, arguing that I am mistaken to suggest that the malum prohibitum offense of money laundering represents an example of overcriminalization. I welcome the specificity of his challenge. The laborious task of distinguishing legitimate from illegitimate impositions of the penal sanction must be undertaken statute by statute. Even if I turn out to be mistaken about the justifiability of this ancillary offense, I take comfort in the fact that the constraints I defend set the parameters of the debate. I would be less embarrassed to have misapplied my own constraints than to have constructed the wrong framework in which to resolve questions of justification. Still, I see no need to withdraw my reservations about this offense. I suspect that the apparent plausibility of Young's rejoinder may betray a misunderstanding of exactly what conduct the Federal Money Laundering Statute actually proscribes. The relevant parts of the offense are as follows:

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity--(i) with the intent to promote the carrying on of specified unlawful activity; or (ii) with intent to engage in conduct constituting a violation of ... the Internal Revenue Code of 1986; or knowing that the transaction is designed in whole or in part-(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State or Federal law, shall be sentenced. (32)

The breadth of this offense is staggering. Consider three scenarios. First, suppose that Smith hides the proceeds from his illegal drug business in the safety deposit box of his local bank in order to evade the income tax. Next, suppose that he loans the proceeds to his nephew for the purpose of allowing him to attend college at a rate of interest far less than is available elsewhere. Finally, suppose that he conceals the proceeds in a secret compartment of his car. In each of the first two scenarios, and arguably in the third as well, (33) Smith's conduct would appear to violate the Federal Money Laundering Statute. (34) In fact, it is fairly difficult to imagine what Smith might do with his ill-gotten gains that would not be a case of money laundering. He would commit this crime by setting fire to his cash rather than paying tax on it.

Young protests that my "counterexample is not sufficiently representative of money laundering to be relied upon in efforts to determine the proper scope of the criminal law." (35) His response misses the point for two reasons. First, although my counterexamples (plural) may not be paradigmatic of money laundering, they are hardly bizarre or unlikely to occur in the real world. In fact, they describe typical and ordinary behavior. Thus I maintain that this malum prohibitum offense is overinclusive, proscribing conduct that does not satisfy my constraints. I have little doubt that some acts that fall under this statute may be wrongful and implicate significant public interests. But it is not my job to redefine the crime so that it passes normative muster. According to my theory of criminalization, the legislature must complete the task of enacting a legitimate statute. In its present form, the Federal Money Laundering Statute falls far short of what is needed to satisfy the demands of my theory. Perhaps Young believes otherwise because he does not interpret the statute to prohibit the behaviors I describe. He alleges "what [money launderers] do is not merely of private concern (as would be the case were they merely depositing their profits in a bank)." (36) But his own example of a case that would be merely of private concern indicates a misunderstanding of the nature of money laundering. Unquestionably, the act of depositing illicit gains in a bank account is an instance of money laundering. If Young thinks this conduct should not be criminalized, he implicitly agrees with me that the existing statute is unjustified.

Young's response is unsatisfactory for a second reason. Many theorists--I suspect Young to be among them--seemingly believe that prosecutorial discretion can remedy over breadth in statutory language. (37) In other words, the government can be relied upon not to press charges in circumstances that fall outside the spirit of the law. As a rough empirical generalization, this belief is true. Still, prosecutorial discretion is not an adequate substitute for getting the law right in the first place. Unfortunately, on many occasions, prosecutors do exercise their discretion to achieve surprising results by taking full advantage of statutory overbreadth. A recent example is the conviction of O. J. Simpson for kidnapping. The Nevada statute states "a person who willfully confines ... a person by any means whatsoever with the intent to hold or detain ... for the purpose of committing ... robbery ... is guilty of kidnapping in the first degree." (38) Simpson and his co-defendants, armed with handguns, forced their way into a hotel room and removed sports memorabilia, some of which he claimed to own. In an audiotape of the incident, Simpson said, "Don't let nobody out of this room." (39) Presumably, these facts constitute kidnapping because he detained his victims against their will for a brief moment of time. But whatever one thinks of Simpson and his previous acquittal for murder, his more recent act is quite unlike what most laypersons and lawyers would conceptualize as kidnapping. The Lindberg baby it is not. As this example shows, prosecutors cannot always be counted upon to exercise their discretion to remedy over-breadth in penal statutes.

Recall the several ways that Smith might commit the crime of money laundering. Since Young does not allege that my constraints on the legitimate use of the penal sanction are mistaken, a defense of the money laundering statute must show why Smith's behavior is wrongful and causes or threatens to cause a nontrivial harm. Some possible answers seem implausible. So-called "economic arguments," as distinguished from the moral arguments offered by some commentators, are nonstarters. (40) The state can satisfy the burden of proof I place upon it only by showing why Smith's behavior is morally wrong. Notice that none of the foregoing examples involve laundering by a third person; this would be a stronger case for imposing criminal sanctions. Nor do any of these examples appear to compromise the integrity of financial institutions Young's preferred candidate for a description of the harm that money laundering statutes are designed to prevent.

This burden of proof is not discharged by explaining how the Federal Money Laundering Statute has been a powerful weapon in the never-ending war on drugs. Clearly, the statute has proved enormously useful. Adding a charge of money laundering onto a crime of drug trafficking can result in a sentence almost four times as severe as what would otherwise be imposed. (41) Thus the charge induces many defendants to accept bargains and plead guilty to the offense of drug distribution. (42) Surely a statute is not justified because it assists prosecutors in securing guilty pleas. Nor is this burden discharged by showing how drug dealing and tax evasion are wrong. The crucial question, of course, is whether Smith commits a wrong in addition to these wrongs. Consider Jones, an otherwise identical drug dealer who spends his unlawful gains immediately. Why should we believe that Smith has committed more wrongful acts than Jones? Why does he deserve to be punished more severely because he saves the proceeds of his crime? Unless these questions can be answered satisfactorily, I conclude that the offense of money laundering, as presently drafted, should be placed beyond the limits of the penal sanction.

Remote Harms and Non-constitutive Crimes

Andrew Simester and Andrew von Hirsch seek to extend and refine my thoughts about what is perhaps the most difficult topic a theory of criminalization must address: the conditions under which the state is warranted in proscribing conduct not because it is harmful, but because it creates a risk of harm. The proliferation of these statutes has contributed mightily to overcriminalization, so theorists have ample incentive to impose limits on the state's power to enact inchoate penal legislation.

Simester and von Hirsch express some interesting reservations about the principles I employ to assess the justifiability of inchoate legislation. Among other things, they reject what I called the culpability principle, according to which persons should not be punished for creating a risk of an ultimate harm unless they have some degree of culpability for it. My idea is that no one should be punished for engaging in conduct because it creates a risk of some harm X unless he is at least negligent with respect to X. Simester and von Hirsch disagree with this principle. They invite us to suppose that "in order to serve such harm-prevention ends, the state enacts an offense of [phi]-ing, and that its doing so is justified by those ends.... If D then intentionally [phi] s without justification he does so culpably. In such a case, we contend, D may legitimately be convicted for [phi]-ing notwithstanding that D was unaware of the ultimate harm lying behind the prohibition, and even if that harm would not have been apparent to an ordinary or reasonable person." (43) In other words, D may legitimately be convicted for [phi]-ing because his conduct creates a risk of harm X even though a reasonable person in his circumstances would not have been aware that his conduct creates a risk of X.

I find it curious that Simester and von Hirsch would reject my culpability principle, since they take pains (both here and elsewhere) to emphasize that "the criminal law [is] a condemnatory institution." (44) I fail to see why they would condemn a defendant for creating a risk of harm X even though a reasonable person in his circumstance would have been unaware that his conduct caused that risk. It is noteworthy that Simester and von Hirsch do not offer a single example in which my culpability principle would preclude liability but they would allow it. If X (death, for example) were explicitly included as an element of the offense, few commentators would permit defendants to be strictly liable for this offense, that is, liable even though they lack negligence with respect to the occurrence of X. (45) Why should we be more tolerant of strict liability when the ultimate harm X is not explicitly mentioned as an element of the inchoate offense? I am unable to think of a case in which our intuitions would favor the result reached by applying their principle rather than mine. Perhaps our intuitions simply conflict here.

Simester and von Hirsch proceed to defend their own views about the conditions under which persons may be liable for (what they call) remote harms. They believe, for example, that I am insufficiently attentive to the distinction between situations in which the defendant ("S") creates a risk of harm X through his own behavior and those in which the harm would not have occurred but for the intervention of another agent ("P"). They might be surprised to find that I agree with much of what they have to say. Unless I have misunderstood the nature of their endeavor, however, I fear that we are engaged in different projects. Simester and von Hirsch are seemingly interested in whether an intervention by P precludes imposing liability on S for the occurrence of X. As they indicate, "many of these cases present distinctive problems for criminalization because, at least where the intervening actor is a free, autonomous agent, the intervention threatens to disrupt S's responsibility for the ultimate harm" (italics added). (46) I agree, but this point is immaterial to my project. I am not interested in identifying the conditions under which S may be liable for X; I am interested in identifying the conditions under which S may be liable for [phi]-ing on the ground that [phi]-ing creates a risk of X. The state may be warranted in punishing S for [phi]-ing because [phi]-ing causes a risk of X even though it would not be justified in punishing S for the occurrence of X itself.

Philosophers who write about omissions frequently overlook the contrast I have in mind, but the debate about Good Samaritan laws provides an excellent illustration of it. Because the state may be justified (under some conditions) in punishing persons who fail to rescue others in danger of life and limb, it may not be justified in punishing them for the deaths of those they fail to rescue. Instead, these persons may be punished simply for what they did (or did not do): failing to rescue. This distinction is crucial. If persons who breach Good Samaritan statutes are punished for their failure to rescue rather than for the harm they fail to avert, they may properly be convicted even when no harm occurs--because, for example, some other individual performs the rescue. In short, the breach of a Good Samaritan statute need not be conceptualized as a means to commit homicide or cause harm. The same point is true of inchoate legislation generally: under the principles I defend, persons may be liable for [phi]-ing because [phi]-ing creates a risk of harm X without being liable for X itself. If I am correct, the supposition that the voluntary intervention of a new agent P may break a causal chain and preclude liability of S for X may be true but irrelevant to my project.

Conclusion

I conclude this response on an optimistic note. For better and for worse, philosophical discourse thrives on disagreement, but the points of debate between my critics and me are quite small. I hope that other legal theorists will join the project of refining a set of principles to narrow the scope of the penal sanction. I predict that legal philosophers will play only a minor role in reversing the trend toward overcriminalization; our recent economic downturn will ultimately prove more decisive. But we philosophers need to be ready with a normative theory if and when we are called upon to produce it. After all, our system is named criminal justice. Our goal, I trust we agree, is to help ensure that our penal institutions conform to this description.

Notes

(1) A few contrarians can be found. For the most sophisticated defense of the opposed position, see Daryl K. Brown, "Democracy and Decriminalization," Texas Law Review 86 (2007): 223-75.

(2) See Christina Pantazis, "The Problem with Criminalisation," Criminal Justice Matters 74 (December 2008): 10-12.

(3) Michael S. Moore, "A Tale of Two Theories," Criminal Justice Ethics, this issue. 34.

(4) Many wrongful actions neither are nor ought to be punished, and some of these wrongs are quite serious. See Leo Katz, "Villainy and Felony: A Problem Concerning Criminalization," Buffalo Criminal Law Review 6 (2003): 451-82.

(5) For further thoughts to which I am sympathetic and indebted, see R. A. Duff, Answering for Crime (Oxford, UK: Hart, 2007).

(6) For an opposing view in line with Moore's thinking, see John Gardner, Offences and Defences (Oxford, UK: Oxford University Press, 2008).

(7) Ibid., 41.

(8) Ibid., 32.

(9) Ibid.

(10) Ibid., 31.

(11) Ibid., 44.

(12) Ibid.

(13) Heidi M. Hurd, "Paternalism on pain of Punishment," Criminal Justice Ethics, this issue, 55.

(14) Ibid., 50

(15) Ibid.

(16) Ibid.

(17) Ibid., 51

(18) Ibid., 50

(19) Ibid., 51

(20) Ibid., 53

(21) Ibid.

(22) Ibid. And yet, in her astute discussion of agent-relativity, Hurd writes that any violations of duties to oneself may involve immorality, but not the kind of immorality that can be condemned by others, 59.

(23) I am unsure about the content of Hurd's intuitions, since she indicates that morality permits "a great deal of behavior that may be risky or harmful to one's own interests," Ibid., 53, italics added. Apparently Hurd does not believe that morality allows people (sane adults?) to take any risk of harm to themselves. Since I am unsure about the content of her intuitions, I am unsure to what extent, if any, they differ from mine.

(24) Ibid., 54

(25) Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008), 151.

(26) Hurd, "Paternalism on Pain of Punishment," 54.

(27) Victor Tadros, "The Architecture of Criminalization," Criminal Justice Ethics, this issue, 76.

(28) Ibid., 85. Tadros expands on these themes in his "Crimes and Security," Modern Law Review 71 (2008): 940-70.

(29) See, for example, Jeffrey Fagan and Tracey L. Meares, "Punishment, Deterrence, and Social Control: The Paradox of Punishment in Minority Communities," Ohio State Journal of Criminal Law 6 (2008): 173-229.

(30) Tadros, "The Architecture of Criminalization," 77.

(31) Fortunately, many other theorists continue to work on these topics. For example, see Nina Persak, Criminalising Harmful Conduct: The Harm Principle, Its Limits and Continental Counterparts (Dordrecht, NL: Springer, 2007).

(32) Federal Money Laundering Statute, 18 U.S. Code (2008), [section] 1956.

(33) See Cuellar v. United States, Docket No. 06-1456; Oral Argument February 25, 2008.

(34) Federal Money Laundering Statute, [section] 1956(c)(3).

(35) Robert Young, "The malum prohibitum Offense of Money Laundering," Criminal Justice Ethics, this issue, 121, n.18.

(36) Ibid., 119

(37) For a more sympathetic perspective on overinclusion, see Samuel W. Buell, "The Upside of Overbreadth," New York University Law Review 83 (2008): 1491-1564.

(38) Nevada Rev. Stat. [section] 200.310 (2008).

(39) CNN Transcripts, available at: http:// transcripts.cnn.com / TRANSCRIPTS/0709 /23/rs.01.html.

(40) See Peter Alldridge, "The Moral Limits of the Crime of Money Laundering," Buffalo Criminal Law Review 5 (2001): 279-319.

(41) See Teresa E. Adams, "Tacking on Money Laundering Charges to White Collar Crimes: What Did Congress Intend, and What Are the Courts Doing?" Georgia State University Law Review 17 (2000): 558-59.

(42) Additional means to induce guilty please are available to prosecutors, since many drug offenders commit ancillary crimes that overlap with money laundering. Federal Money Laundering Statute, [section] 5332, for example, prohibits smuggling bulk amounts of cash.

(43) A. P. Simester and Andrew von Hirsch, "Remote Harms and Non-constitutive Crimes," Criminal Justice Ethics, this issue, 95.

(44) Ibid., 92.

(45) Elsewhere, Simester provides an impressive defense of some instances of strict liability. The principles he supports, however, would not justify strict liability in the case I mentioned. See A. P. Simester, "Is Strict Liability Always Wrong?" in Appraising Strict Liability, ed. Simester (Oxford, UK: Oxford University Press, 2005), 21.

(46) Simester and von Hirsch, "Remote Harms," 99.

DOUGLAS HUSAK *

* Douglas Husak is Professor of Philosophy, Rutgers, the State University of New Jersey, New Brunswick. Email: [e-mail]