Douglas Husak, Overcriminalization: The Limits Of The Criminal Law.

Introduction

For what kinds of conduct may we impose on people the condemnatory sanction of legal punishment? Or, what may be viewed as its echo, what kinds of behavior may we legitimately criminalize? For it might be argued that what we denominate as crimes are those forms of behavior whose commission warrants punitive state intervention. These questions are in fact more complex than they may initially appear. On the one hand, they ask about forms of conduct that merit punitive condemnation. On the other hand, they concern the appropriate involvement of the state in expressing that condemnation. And, in addition to their complexity, there can be questions about their underlying presumptions--for example, whether condemnatory sanctions are for forms of conduct or behavior rather than for status or possession, or even whether punitive sanctions are ever justified or justifiably administered by the state.

These are not new questions, but the answers given to them have never satisfied enough of those who have addressed them to regard them as "settled." What is more--and most certainly in the United States, though even to some extent in other liberal democratic polities--the level of punitive sanction seems to have got out of hand. With approximately 750 per 100,000 persons in prison or jail and more than twice that number under some form of intensive supervision, the United States is far and away the most punitive country in the world. What Douglas Husak sees as a crisis of overcriminalization gives his new book its passionate point. Such overcriminalization has a number of sources, but Husak believes that one of its important roots is our failure to come to terms with the questions posed above. We simply do not have a clear and defensible account of the general circumstances under which it is appropriate to employ the state's punitive authority.

Husak's recent study, Overcriminalization: The Limits of Criminal Law (1) is an attempt to take significant steps toward the rectification of this failure. In particular, he proffers seven constraints on state punitive power as individually and severally necessary for its exercise. (The question of sufficiency is another matter.) He divides these constraints into those that are internal and those that are external. Internal constraints are characterized as those that arise out of the very nature of criminal law, and cannot be dispensed with. External constraints, on the other hand, are external to the criminal law and derive from political theory concerning the condition that need to be satisfied for "the right not to be punished" to be infringed. Although the distinction is more than one of convenience, it is not meant to be rigid.

Husak's internal constraints are as follows:

1. the prohibited conduct must involve a nontrivial harm or evil;

2. the conduct must be in some sense wrongful;

3. punishment is justified only when and to the extent that it is deserved; and

4. the onus of criminalization lies on those who initiate it.

The external constraints comprise:

5. criminalization of conduct must serve a substantial and legitimate governmental interest;

6. a criminal prohibition must directly advance the government's objective; and

7. the prohibition is to be no more extensive than necessary

Each constraint is defended and richly illustrated, and in a final chapter Husak considers how his position might be considered superior to its major rivals--what he judges as the economic approach to law defended by Richard Posner and others; utilitarian approaches that originate in and refine views classically expounded by Jeremy Bentham; and moralistic approaches most powerfully articulated by Michael S. Moore.

How successful is Husak's account? In the papers that follow, several philosophers and major contributors to criminal law theory offer their considered assessments of Husak's achievement--assessments that, even when critical, acknowledge the formidable contribution that Husak has made. We are grateful to them for their thoughtful and careful essays. Three of the contributions--those of Robert Young, Heidi Hurd, and Michael Moore were originally prepared for a workshop timed to coincide with Husak's visit to the Centre for Applied Philosophy and Public Ethics in Canberra, Australia, on July 3, 2008. Those of Victor Tadros and Andrew Simester/Andrew von Hirsch were independently solicited. Rounding out the symposium, and adding to its value as a contribution to criminal law theory, Husak has crafted a substantial response to his interlocutors.

Note

(1) New York: Oxford University Press, 2008.

John Kleinig is Professor of Philosophy, John Jay College of Criminal Justice, CUNY, and Professorial Fellow in Criminal Justice Ethics, Centre for Applied Philosophy and Public Ethics, CSU. Email: [e-mail]