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The architecture of criminalization.

Most people who think seriously about the criminal law think that there should be less of it. Not only should there be less of it in some areas, there should be less of it overall. Douglas Husak is no exception to this general trend, but he is also probably the person who has thought most deeply about the moral and political issues that underpin this thought, and he has done the most to encourage theoretical investigation of it. His book Overcriminalization provides the best attempt that has been made to articulate a comprehensive framework for discussion of the principles that ought to govern the limits of the criminal law. (1) Husak is explicit that the book provides only a framework for investigation rather than a fully developed set of principles that could be applied directly to the question. Nevertheless, the book makes real and substantial progress in improving our understanding of it.

Much of the recent discussion about the limits of the criminal law is confined to debating the harm principle. The questions are: What is harm? How should the harm principle be rendered? Should the principle be satisfied in every case, or are there additional grounds for criminalization? Focusing on these questions has not been useless by any means. But when one looks at the ways in which the criminal law is expanding, for example through a multitude of possession offenses, through an expansion of inchoate offenses, and through a range of hybrid civil/criminal measures, the harm principle appears to have very little bite. (2) It was of more use when a central concern of overcriminalization was the criminalization of non-mainstream sexual practices. But as that is less the case than it once was, the harm principle should now at most be seen as Husak sees it, as a smaller part of a more developed armory of constraints to regulate the criminal law.

Husak argues that there are seven constraints on the scope of the criminal law. He divides them roughly into internal and external constraints. Internal constraints are constraints that result from the nature of the criminal law itself: the fact that the criminal law is part of the law, and the fact that it has an important connection to punishment. External constraints are constraints derived from the scope and function of the state. Husak develops these latter constraints by considering the way in which legislation is scrutinized in the constitutional tradition. To put things crudely, we grasp internal constraints on the criminal law through reflection on the criminal law itself. We grasp external constraints on it through reflection on the limits of state action.

My focus will be on how we should see the architecture of a theory of criminalization. One ambition of this essay is to consider the extent to which Husak's framework provides a clear basis to restrain the scope of the criminal law. Although I will suggest that the constraints are plausible, it is not clear how independent they are of each other, or how they are to be rendered more specific in a way that can provide us with determinate conclusions about the scope of the criminal law. What Husak has provided us with is an architecture within which more particular principles to govern the criminal law can be developed. But much of that work is yet to be done, and it is often not clear how to proceed without making more controversial claims in moral and political theory than Husak wants to make. Furthermore, once Husak's general principles are made more specific, it is likely that the framework will come to be replaced by another, as it will become clear that some constraints are redundant, or subsidiary to others.

A second ambition is to indicate an important but neglected aspect of the theoretical architecture of criminalization: the distinction between ideal and non-ideal implications of criminalization. This distinction is important particularly to encourage further thinking about what I call non-ideal consequences of criminalization: the effects that a new criminal offense is likely to have in the real world and the extent to which it will alter the risks of hardship that people will suffer. I am concerned that Husak's constraints are for the most part overly ideal, a concern that is warranted in relation to the vast majority of work on the limits of the criminal law. Husak's constraints are constraints on what we can criminalize in principle. But the main concern that we ought to have about criminalization is the effects that it tends to have in practice. Husak is concerned with practice: he is concerned with the extent to which criminalization tends to result in imprisonment. But this concern plays less of a role than it ought to in developing plausible principles to govern criminalization.

Husak's Architecture

Husak suggests that there are four internal constraints on criminalization: (1) The conduct criminalized must be a non-trivial harm or evil; (2) the conduct must be wrong; (3) the conduct criminalized must warrant punishment; and (4) the burden of proof falls on those justifying criminalization. There are also three external constraints, which are derived from the constitutional tradition: the state must have a substantial interest in pursuing the objective that the legislation is designed to pursue; the law must directly advance that interest; and third, the statute must be no more extensive than necessary to achieve its purpose. The main question that I want to raise is about the independence of these constraints, mainly but not completely focussed on the internal constraints. Husak admits that the constraints are overlapping and that the distinction between internal and external constraints is somewhat crude and artificial. (3) I wonder whether they are really independent constraints at all, or whether we would do better to seek a more unified view of the relationship between public wrongdoing and harm both to simplify Husak's structure for thinking about criminalization and to make it more determinate.

Harms and Wrongs

Husak's first two constraints are relatively familiar from the literature on the limits on the criminal law. There is some important relationship between crime and harm, and between crime and wrongdoing. As these constraints, and issues concerning them, are relatively familiar, I will dwell on them only briefly.

The first thing to note is that the relationship between harm and crime has generated more disagreement than consensus, and it is not clear that substantial progress has been made in providing plausible limits to the criminal law. The problem stems partly from controversies about what is harmful, but more importantly from the best rendition of the harm principle. In some renditions, the harm principle would provide too strict a constraint on the criminal law. If what is required is that each token of a criminal offense must be harmful in order for the principle to be satisfied, that would rule out the prohibition of possession of nuclear weapons, or the prohibition of flying an airplane under the influence of hallucinogenic drugs.

In other renditions, the harm principle is very broad. If all that is required for it to be satisfied is that, were it not for the prohibition, some harm would come about that would not have come about given the prohibition, the principle is very permissive. Prohibitions on gay sex, political speech, wearing your football team's colors, and interracial marriage would all satisfy this rendition of the harm principle under the right social conditions. I am not sure whether there is a rendition of this constraint that steers a plausible path between the extremes. I doubt that we will make much progress here by focusing on harm and the harm principle. What we take to be the best rendition of the principle is likely to be heavily dependent on other normative considerations about the limits of the state. At most, the principle, if it is a genuinely exclusive principle, (4) will rule out criminalizing action that is seriously morally wrongful but which is not harmful (if there are such actions, and it can be agreed which actions they are). Consequently, we are probably best off not taking a detour into the nature of harm and the scope of the harm principle, but rather to identify particular moral principles that do more direct work in determining the scope of the law.

For Husak, however, the harm principle appears not to be an exclusive principle, for Husak allows the prohibition of things that are nontrivially evil. I do not know much about evil, let alone non-trivial evil, and I do not know which things are non-trivially evil but also not harmful. So I am not sure what non-harmful evils ought to be criminalized. One reason why it became popular for liberals to defend the harm principle is that enumerating what is morally wrong is very controversial. According to some, the harm principle was intended to provide a morally neutral, or at least a less morally controversial, standard against which criminalization (as well as other state and non-state rules and sanctions) could be judged. (5) By relaxing the constraint that harm was supposed to provide to include nontrivial evils, Husak may be too permissive regarding the criminalization of non-harmful moral wrongs, if there are indeed any such wrongs.

The second constraint is that the behavior criminalized must be wrong. To show that this constraint does more work than the harm principle, it must be shown that there are things that are harmful but are not morally wrong. It might, for example, rule out harms caused through fair economic competition: economic competition might be harmful to some, but it is not morally wrong to engage in it. Again, though this seems a plausible constraint on the criminal law, it is also highly indeterminate. Deontologists, contractualists, and (rule- and act-) utilitarians have different theories about how to identify what is morally wrong. So, in order to make further progress with the constraint on the criminal law, we will need some more developed moral theory to do the work for us. Husak does not pin his colors to any particular mast here, which in one way is fair enough, though it also results in this constraint being highly malleable in the light of different moral theories.

The problem is not that there is no wrongfulness constraint. The problem is rather that without an independent theory of what is wrong, it is difficult to know what is constrained. Take, for example, the criminalization of knife possession. We are to ask whether it is wrong to possess a knife in public. According to one view, a rule-consequentialist view, if everyone's adhering to a rule prohibiting knife possession would do more good than harm, then possession of a knife is wrong. (6) According to another view, a contractualist view, we should instead ask whether anyone could reasonably reject a principle obliging us not to possess knives in public. (7) These theories may well lead to different answers in this and other controversial cases. Without knowing more about what view is correct in terms of wrongfulness, it is difficult to know how powerful a constraint this is.

Furthermore, it is difficult to know whether the second constraint is too constraining on what can be criminalized. If adopting some rule of the criminal law would very substantially reduce serious harms done to citizens, but the content of that law meant that some non-wrongful conduct was criminalized, are we compelled to think that criminalization is wrong? As long as the rules of the criminal law have just outcomes, something that I will consider in more detail in a moment, why should we also ensure that the conduct prohibited is wrong independently of that fact? After all, surely it is wrong to violate a just law, regardless of the reasons why the law is just.

Crime and Punishment

Husak's third constraint has to do with punishment. The idea is that there is an intimate connection between punishment and the criminal law. As a criminal offense is a punishable offense, we had better make sure that conduct that is criminalized is punishable conduct. Husak claims (1) that there is an intrinsic link between crime and punishment, such that what is a crime is what is punishable; (2) that punishment is warranted only if it is deserved; and therefore (3) that only conduct which makes punishment deserved can be criminalized.

One question that might be asked here is whether the link between crime and punishment is quite as intimate as Husak thinks. Husak argues that there is no serious rival for the claim that we identify a criminal law by identifying that which is punishable. But I am not sure that is true. We might contrast this view with the view that a criminal wrong is a public wrong, and a public wrong is that which is capable of public condemnation. (8) We might focus on the role that the criminal law has in public expression of wrongdoing rather than the role it has of warranting the imposition of suffering on wrongdoers. (9) And this would leave it open to argue that there are wrongs that warrant public condemnation, but that do not merit punishment. We might even be abolitionists about punishment and still think that the criminal law has an important role to play in condemning wrongdoers for their wrongs.

Admittedly in taking this approach we also struggle to make progress in providing limits to the scope of the criminal law. (10) For it is not clear why we should not see wrongs in private law as "public" in the appropriate sense. Take breach of contract, for example. Breach of contract is a wrong that the state takes seriously. In standard breach of contract cases, the state recognizes that the defendant unjustly retains an unfair share of wealth and it requires him to transfer it to the plaintiff. In doing so, the state at least implicitly criticizes the defendant for perpetrating an injustice against the plaintiff. As the distribution of wealth is clearly a matter of public concern, why should we not then see breach of contract as a public wrong? Why should the state not publicly condemn the defendant for the injustice he perpetrates? Husak's plausible answer to this comes later in his book. (11) He argues that whether something is a crime or not is dependent on who should have control over the decision to instigate proceedings. The reason why we should not criminalize breach of contract, if indeed we should not, is that victims of breach should retain the right to forgive and forget breach of contract should they wish to do so. That may well not be true of central crimes such as rape or serious assault, and hence those wrongs should be criminalized.

There is much that is true about this idea, I think, and it certainly merits further exploration to see whether it can be made normatively satisfying. But if it is true, it does not track the distinction between things that are punishable and things that are not. There at least might be wrongs where the victim should not be entitled to restrain the state from making a public condemnation of that wrongdoing, but where punishment is not warranted. In order to determine whether this is the case, we need to know something further about the grounds for condemnation and their relationship to the grounds for punishment, something that only a more developed theory of criminal justice and punishment can tell us.

Nevertheless, though there is a plausible alternative to Husak's position about the intimate connection between crime and punishment, he may be right to focus on punishment as the distinguishing mark of the criminal law. There may be good reasons not to see breach of contract as punishable, even if it warrants public criticism by the state. Perhaps that is because there are efficient breaches, or perhaps it is because the victim ought to be entitled to accept the compensation without the state taking further action against the defendant, or perhaps it is because breach of contract is not normally a very serious wrong. It would be a mistake to suppose that the state is not entitled to criticize defendants for breach of contract, even if it is not entitled to punish them. However, we might think that the criticism that the state makes of those who breach contracts is not of the kind that distinguishes criminal law.

But even if this is true, can punishment itself provide a constraint on the criminal law? Husak attempts to show that this constraint is attractive from both retributivist and non-retributivist points of view. He focuses on the former rather than the latter, however. There are two concerns about his position. One has to do with the nature of retributivism. As retributivism is the theory that punishment is warranted because it is intrinsically good or right that wrongdoers suffer, it is not clear that the punishment constraint is really independent of the wrongdoing constraint.

The other concern has to do with the role of desert in non-retributivist theories of punishment. For non-retributivists, what is deserved is determined by the criminal justice system, which must be defended on other (probably non-desert based) grounds. It cannot provide a guide to the development of institutions. Consequently, according to these theories, the fact that punishment is deserved cannot provide a resource to restrain the criminal law. Other moral principles or ideas must do that work.

Let us begin with retributivism. Retributivists differ as to what they advocate. According to some retributive theories, state punishment is warranted in order to give defendants what they deserve, where desert is understood "pre-institutionally." Wrongdoers deserve to suffer for their wrongs, the thought goes, and the state ought to ensure that defendants get what they deserve. According to other retributive theories, it is right to make defendants suffer because in that way we express solidarity with the victims and display proper concern for their rights. What binds these theories together, and distinguishes them from consequentialist or license-based theories, is that imposing suffering on defendants is seen as valuable for its own sake, and not for some further end such as crime reduction.

But if it is good or right that wrongdoers suffer, why should not the criminal law, in principle at least, be concerned to make all wrongdoers suffer? And if it is true that retributivists are committed to the claim that it is good that all wrongdoers suffer, it is not clear how the requirement that punishment must be deserved can provide a constraint on the criminal law that is independent of the wrongfulness constraint.

Furthermore, if retributivism is right then it becomes less obvious that things that are currently conceived of as private wrongs, such as breach of contract, should not be crimes. The right of the victim to have the contract performed has been violated by the defendant, and he has refused, independently of the law, to provide her with the compensation to which she is entitled. Why, then, does he not deserve to suffer, or why should we not express solidarity with the victim for what she has suffered by punishing the defendant? Breach of contract may be harmful, it is clearly wrong, and now, it seems, according to retributive theories at least, that there is good reason to think that it warrants punishment. So the three internal constraints that we have considered so far seem insufficiently powerful to show that the criminal law should not be expanded, let alone that it should be restrained further. Husak, of course, rejects the idea that all wrongs ought to be punished on the grounds that some wrongs are private. But the plausible idea to which I alluded above--that victims of the wrong ought to have the right to forgive and forget in these cases--seems difficult to motivate according to a retributivist view. For if it is fitting or right that the wrongdoer should suffer, what could motivate us to forgo doing what is fitting or right?

In summary, Husak thinks that retributivism provides a constraint on the criminal law, and retributivism is often portrayed as though it should lead us to a criminal law with a modest scope, but it is not obvious that this is true. We should be concerned about the restrictive tendencies of retributivism: can it provide an attractive explanation of why we should have some possession offenses? But we should also be concerned by its expansive tendencies: can it explain why breach of contract should not be a crime?

The reason for the latter concern is that retributivism tends to lead us to legal moralism--the theory that all morally wrongful action is in principle, if not in practice, worthy of being criminalized. It is no surprise that one of the most prominent retributivists, Michael Moore, is also one of the most prominent legal moralists. (12) For if it is good, just, or right that wrongdoers suffer, one might also think that the state has an obligation to make them suffer, for the state must pursue what is good, just, or right. Of course, this need not follow. We might think that it is good that wrongdoers should suffer, but deny that the state always has a role in making them suffer. But that would be in virtue of limits on the role of the state, or what Husak calls external constraints on the criminal law, rather than as a consequence of the nature of punishment itself. So it does not show that punishment provides an important constraint on the scope of the criminal law beyond the wrongfulness constraint.

Furthermore, although Husak rejects Moore's view on the grounds that there are wrongs that are inherently private, (13) the grounds for distinguishing private from public wrongs is not obvious and seems difficult for a retributivist like Husak to motivate. For my part, I think that this is one amongst a range of reasons to reject retributivism. When we focus on private wrongs, retributivists struggle to show why we are not abrogating our responsibilities in failing to mete out punishment.

Now let us turn to non-retributivist theories. Husak thinks that the punishment constraint will be important for non-retributivists as well as for retributivists, because non-retributivists will also be committed to the claim that we are permitted to punish only those who deserve it. However, though this is last claim is true, not all theories of punishment take "pre-institutional" desert to be significant in determining the justification of punishment. There are two ways in which we might understand the claim that a wrongdoer deserves to be punished. One is that there is a pre-institutional fact about what is deserved--say, that wrongdoers suffer--which then justifies the institution of punishment. Punishment is justified to give people what they deserve. The other is that what a person deserves is to be determined by the institution of punishment itself, and that institution is to be justified on other grounds. What the wrongdoer deserves is set by, rather than determinative of, the institution. (14) As I find the idea of pre-institutional desert somewhat mysterious, I tend to take the latter view. If an offender deserves to suffer, what that means is that his suffering is justified as part of an institution that imposes suffering. And the justification of the institution is not the fact that the suffering of the wrongdoer is good for its own sake.

In the light of this, let us turn again to Husak's punishment constraint. Husak rightly points out that no sensible punishment theorist will want to claim that undeserved punishments can be justified. Consequentialists, (15) license theorists, (16) paternalists (17) and retributivists all agree that punishment must be deserved to be rightly imposed. But they disagree about what it is that makes punishment deserved. It is only retributivists who think that there is a pre-institutional conception of deserved suffering that the institution of punishment seeks to satisfy. For these other theorists, though it must be true that punishment can be imposed only if it deserved, this makes no progress in defending our institutional arrangements. The principles that govern our criminal justice institutions, including those governing the scope of our criminal law, are not to be determined by desert. Rather, what is deserved is to be determined by other principles of justice or fairness. So, according to these views, the fact that punishment must be deserved cannot guide legislators as to what the criminal law ought to be.

So, although there is a consensus that punishment can be imposed only if it is deserved, that does not provide a clear constraint on the scope of the criminal law, independent of the other constraints. This is because the conceptions of desert that different theorists use differ widely. For retributivists, desert does direct work. For many other theorists, it does not. Desert is an outcome of rather than an input into the justification of the criminal justice system. Insofar as different theorists have different accounts of the justification of criminal justice institutions themselves, they will also be likely to diverge widely about the conditions under which they think punishment is deserved. Thus they are likely to defend different accounts of the scope of the criminal law.

So, with respect to punishment I draw two conclusions. If one is a retributivist, and one thinks that all crimes must be punishable, there is a concern that the constraints on criminalization will be implausibly great with respect to possession offenses. If that is not the case, it is also not clear that anything is added to the other constraints Husak considers. If one is not a retributivist and one thinks that all crimes must be punishable, the idea that punishment must be deserved does not itself provide a restraint on the scope of the criminal law. Other aspects of particular theories of punishment might provide restraints on the scope of the criminal law, but we will know what those restraints are only by investigating those particular theories in detail. Husak's focus on punishment is potentially important, but more needs to be said to show that it is both plausible and powerful.

Public Wrongs

Husak derives his external constraints from insights gathered from constitutional law. In doing so, he takes steps to correct a serious weakness both in criminal law theory and in the political protections that are currently provided to citizens who are subject to an unfairly extensive criminal law. In the literature there is very little focus at present on the politics of the criminal law. There are some efforts to consider how politics might or might not be inclined to deliver fair criminal law, but there are few serious efforts to consider the kinds of reforms that would make it more likely to do so. This is at a time when the criminal law is expanding rapidly, to the disadvantage of the worst-off citizens in our society (if not everyone).

The constitutional tradition is, at first glance, an odd place to look for restraint on the criminal law. Although there are substantial constitutional checks on criminal trials and on policing, the constitutional tradition provides very little restraint on the substantive criminal law. The U.S. position that Husak describes is mirrored by the European Convention of Human Rights, which protects the right to a fair trial but not the right to a fair criminal law. (18) This potentially renders its trial protections fairly meaningless. What is the point of taking so much trouble to ensure that policing and trials are fair when the wrongs with which they are concerned are so unfair?

Husak makes a case for a kind of constitutional scrutiny of criminal legislation that would mirror the kind of scrutiny that courts in the U.S. make about restrictions of commercial speech. He calls this an "intermediate" level of scrutiny. Husak offers three inquiries that are intended to structure thinking about criminal legislation. However, Husak does not advocate giving courts the power to scrutinize legislation in this way. The structure is to guide legislatures rather than courts.

First, the state must have a substantial interest in the objective that the legislation is intended to achieve. Second, the law must directly advance that interest. Third, the statute must be no more extensive than is necessary to achieve that purpose. In order to decide whether the state has a substantial interest in the objective of the legislation, which I think is the most important aspect of this part of his theory, Husak takes a detour into the idea of public wrongs articulated by Sandra Marshall and Antony Duff. I discussed this idea earlier. Some wrongs are legitimately public wrongs, in that they are legitimate targets for condemnation. As I noted above, it is difficult to make direct progress with this conception. In order to make progress, Husak focuses our thinking on who should be in a position to instigate and pursue a complaint. A wrong is a public wrong if individual victims should not retain the power to decide whether the wrongdoer must be made to respond. (19)

One question we might ask here about Husak's framework is why he locates the question of whether a wrong is public in the "external" constraints on the criminal law. I would have thought that the idea that crimes are public wrongs is broadly of the same kind as the idea that crimes are punishable wrongs. It is a little confusing to separate these questions. His answer might have to do with the audience for the justification of criminalization. For Husak, to justify something is to justify it to someone or some group in particular. Although he does not quite articulate the argument at the relevant points of the book, he seems to endorse the following ideas. That punishment for wrongdoing is deserved is a way of justifying criminalization to those who are punished for committing the offense. That the wrong is a public wrong is a way of justifying criminalization to citizens who support and maintain the criminal justice system.

I am not sure whether these arguments are valid. If the state is to condemn an offender in a public voice--both in the voice of the public and in a voice articulated to the public--then the wrong that the offender has committed must be of a kind to warrant this condemnation. If it is not of that kind, not only have the public a right to complain about it, but for the very same reason so does the particular offender who is condemned. "You are condemning me in the name of the public," he might say, "but my wrong is none of their business."

The separation of an account of public wrongdoing from these other constraints is artificial. This suggests, to me at least, a deeper problem with Husak's structure. Husak admits that the constraints that he places on criminalization are overlapping. But the problem, it seems to me, is not one of overlap. It is rather that these principles are not obviously distinct at all. Surely there would be some merit in attempting to develop a more unified account, one which would integrate discussion of harm, evil, public wrongdoing, and the right to punish. What I think this suggests is that the account of public wrongs should be integrated into the discussion of harms, evils, wrongs, and punishment earlier in the book. In fact, more ambitiously it might be that we begin with the idea of public wrongs and flesh that out in terms of harms, evils, wrongs, and punishment.

Because Husak does not spend much time considering the relationship between his principles, it is not obvious that they are not derived from the same unified source. So where it seems that we have this very heavy armory of constraints to restrain the development of the criminal law, we may actually have something that is much more permissive, something that allows an overly expansive criminal law. Of course, Husak's principles would not allow the criminal law to expand as far as it has in the U.K. or the U.S. but then a simple principle such as the principle that the law must not do much more harm than good would be enough to restrain the criminal law to some degree. (20)

The Ideal and the Non-ideal in a Theory of Criminalization

I now want to raise a distinction that I think is important and has generally been neglected in discussions of criminalization: the distinction between ideal and non-ideal conformity with what the rules of the criminal law require. The idea, which I develop at greater length elsewhere, (21) is this. There are two ways in which we can analyze the implications of the creation of a new offense (or indeed a defense, but let us keep it simple). We can consider what its implications would be were everyone to conform to what it requires. This is what we might call its ideal implications. We can also consider what will in fact happen knowing that some citizens will breach it, and some public officials will make mistakes with respect to the responsibilities it gives them. This is what we might call its non-ideal implications.

This distinction can help to enrich a theory of criminalization, and in particular can help us to focus our attention on the non-ideal implications of creating a new criminal offense, something that philosophers of the criminal law have tended to neglect. Consider a proposed new criminal offense that has "v" as a certain scope. We might ask: were all to comply with the law would the outcome be just? All citizens would refrain from v-ing. Perhaps it would be valuable for some citizens to v, and they would therefore be disadvantaged. But perhaps less harm would be done were all citizens to refrain from v-ing. As the state, in creating a criminal law, requires citizens not to v, justice must be advanced by perfect compliance.

Now turn to the non-ideal effects of criminalization. Some citizens will not refrain from v-ing, and that will lead them to breach the criminal law, and some of them will be punished for it. Some citizens will be investigated for v-ing when they have not in fact v-ed. Some citizens will be wrongfully prosecuted and convicted for v-ing. Clearly, the distribution of risks and harms will be different from what it would have been in the counterfactual world of perfect compliance.

It seems to me that Husak's constraints speak primarily to the ideal effects of criminalization rather than to its real effects. The harm, wrong, and punishment constraints, for example, all speak primarily to the real effects of criminalization, as does the condition that the wrong must be the public's business. Perhaps when fleshed out a bit further, external constraints lead us to consider the effects of criminalizing something. But at any rate Husak devotes relatively little attention to the real effects of criminalization in constructing his theory, which is surprising given his explicit and sensible concern that criminalization is often very harmful in the real world.

When we focus on these real effects of an offense, even if that offense is satisfactory from an ideal perspective, a range of questions might be asked about its legitimacy. For example, criminalization might reduce the risk that some citizens will suffer some kind of harm, either from v-ing itself or from further harms that v-ing contributes. But other citizens will face a higher risk of wrongful investigation, prosecution, and conviction for v-ing. Those risks will likely be distributed unevenly across the population, and those who have a higher risk of wrongful investigation, prosecution, and conviction may be those who already face a high level of risk of those harms, or other harms. Those benefiting from the creation of the offense, in contrast, might be those who tend to face only low levels of risks of these kinds.

One significant objection to the expansion of the criminal law is that it has made some of the poorest and most risk-laden sections of our communities subject to high risks of being wrongfully interfered with by the police, being wrongfully stopped and searched, and being wrongfully arrested, prosecuted, and convicted. This is true with respect to some offenses that are unjust in ideal terms but also offenses that are just in ideal terms.

Take drug offenses, on which Husak has done a great deal of serious work. One question about them is whether they satisfy ideal demands. Would citizens have a legitimate complaint against their criminalization were everyone to comply with drug laws? Perhaps drug offenses do not satisfy the harm requirement or the wrongfulness requirement, or perhaps they are harmful and wrongful but they are not publicly wrong. I am not sure how true this is. But even if some of those offenses were just in ideal terms, they also result in many of the poorest people in our communities receiving unwarranted police attention when they have not committed those offenses. And, as everyone is aware, there are racial and gender dimensions to the distribution of this unwarranted attention as well. The interests of people in these communities are set back not only when they receive that unwarranted police attention, they are set back by the increased risk of it occurring.

Furthermore, families of those who are convicted of drug offenses are disadvantaged, in a way that they cannot avoid, by being deprived of income, child care, and so on, and our drug laws impose risks of these things happening to them. Finally, these impacts tend to be self-perpetuating, disadvantaging most members of the poorest communities to a greater extent than they benefit by drugs laws overall. Surely the fact that criminalization tends to compound economic injustices that the worst-off in our societies suffer has some implications for what we should criminalize. For example, we might think that the fact that poverty is criminogenic, combined with the fact that we do too little to alleviate poverty, provides reason not to hold the poor responsible for some actions that are sufficiently wrongful to warrant criminalization in a world of ideal economic justice. (22)

In order to make further progress in this respect, we need a theory about the just distribution of risks of different kinds, something that is lacking in criminal law theory. Although political theory has, at least since the pioneering work of John Rawls, made great strides in improving our understanding of the just distribution of wealth, those working on the theory of criminal justice have made little progress on questions about the just distribution of risks and harms. An analysis of that kind, I think, would help us make a significant advance on Husak's theory of criminalization. It would provide us not so much with a set of principled constraints on the criminal law as a way of evaluating the significance of the consequences of criminalization.

Husak tends to avoid thinking about the outcomes of criminalization, perhaps on the grounds that thinking about the consequences is something that need only concern utilitarians. But thinking about the distribution of the outcomes of our policies need be no more utilitarian in the context of criminal justice policy than it is in the context of the distribution of wealth. For example, just as we might have special concern for those who are worst off in wealth terms in developing our economic policies, as Rawls suggested, so we might have special concern for those who are most at risk of being harmed in developing our criminal justice policies. Furthermore, thinking about outcomes might be important within some other set of constraints, such as those recommended by Husak, just as for Rawls there are constraints (such as those of equal liberty and equality of opportunity) on how to achieve the ideal distribution of wealth. (23)

Conclusions

Husak has provided a formidable and ambitious attempt to provide normative constraints on the criminal law. Ultimately, however, I think that we should look for a more unified theory of criminalization to replace his seven constraints. Perhaps we should begin with the idea of public wrongs and flesh that out by considering its implications in terms of harm, evil, moral wrongdoing, and punishment. But even once we do this, I suspect that our theory of criminalization will be seriously incomplete. Any theory of this kind will, I suspect, be quite permissive with respect to what may be criminalized. (24) Where more progress needs to be made is in a theory that will help us to evaluate the non-ideal consequences of criminalization.

Even if Husak is right about his constraints on the criminal law, a theory that helps us to evaluate the outcomes of criminalization will be important in providing further tools to determine the scope and content of the criminal law. In merely conforming to the constraints that Husak provides we may fail to ensure that citizens are treated justly with respect to the risks that the criminal law might reduce as well as to the risks that it imposes on citizens. Husak's book, I suggest, is an auspicious beginning to a full theory of criminalization.

Notes

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

(2) There is a rapidly developing literature on these trends. Beyond Husak's own work, see, for example, M. D. Dubber, "The Possession Paradigm: The Special Part and the Police Power Model of the Criminal Process," in Defining Crimes: Essays on the Special Part of the Criminal Law, ed. R. A. Duff and S. P. Green (Oxford, UK: Oxford University Press, 2005), 91-118; W. Stuntz, "The Pathological Politics of Criminal Law," Michigan Law Review 100 (2001): 505-600 and A. Ashworth, "Is the Criminal Law a Lost Cause," Law Quarterly Review 116 (2000): 225-56.

(3) Husak, Overcriminalization, 57-58.

(4) It might be a permissive principle, as it is for Joel Feinberg. See Feinberg, Harms to Others (Oxford, UK: Oxford University Press, 1984).

(5) On this as the motivation to identify harms as distinct from the wrongs that bring them about, and criticisms of the approach, see R. A. Duff, Answering for Crime (Oxford, UK: Hart, 2007), chap. 6.

(6) For a recent defense of rule-consequentialism, see Brad Hooker, Ideal Code, Real World (Oxford, UK: Oxford University Press, 2000).

(7) An approach defended most thoroughly in T. M. Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998).

(8) See especially S. E. Marshall and R. A. Duff, "Criminalization and Sharing Wrongs," Canadian Journal of Law and Jurisprudence 11 (1998): 7; and R. A. Duff, Punishment, Communication and Community (Oxford, UK: Oxford University Press, 2001), 60-64. Husak considers the "public wrong" approach later in his book but doesn't see it as an alternative to the identification of crime as that which is punishable. See Husak, Overcriminalization, 135-38.

(9) For one of the most developed accounts of the separation of blame and the imposition of burdens in both law and morals, see Scanlon, What We Owe to Each Other.

(10) As Duff himself notes in Answering for Crime, 140-46.

(11) Husak, Overcriminalization, 136-37.

(12) See Michael S. Moore, Placing Blame (Oxford, UK: Oxford University Press, 1997).

(13) Husak, Overcriminalization, 199. Shortly thereafter, Husak seems to me to depart from central retributivist claims altogether, suggesting that punishing wrongdoers may not be intrinsically good; it may just not be intrinsically bad. I'm not quite sure what to make of that idea. Retributivists typically find it difficult to give any real argument why the suffering of wrongdoers is good. They tend to fall back on arguments from intuition that seem to me quite weak. I find it even harder to imagine what the arguments are for the claim that the suffering of wrongdoers is neither good nor bad. Ibid., 200.

(14) In the realm of economic justice, for example, John Rawls suggests that what a person deserves is to be set by our institutions rather than providing a basis for them. See Rawls, A Theory of Justice, rev. ed. (Oxford, UK: Oxford University Press, 1999). Those influenced by Rawls disagree about whether this is also true of punishment. Scanlon thinks that it is. See T. M. Scanlon, "The Significance of Choice," in The Tanner Lectures on Human Values, ed. S. M. McMurrin (Salt Lake City: University of Utah Press, 1988), inclusive page #s? Samuel Scheffler thinks that it is open to Rawlsians to accept retributivism. See Scheffler, "Justice and Desert in Liberal Theory," in his Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford, UK: Oxford University Press, 2001).

(15) For example, J. D. Mabbott, "Punishment," Mind 48 (1939): 152-67; J. Rawls, "Two Concepts of Rules," The Philosophical Review 64 (1955): 3-32; and John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford, UK: Oxford University Press, 1990).

(16) For example, C. S. Nino, "A Consensual Theory of Punishment," Philosophy and Public Affairs 12 (1983): 289-306; and T. M. Scanlon, "Punishment and the Rule of Law," in his The Difficulty of Tolerance (Cambridge, UK: Cambridge University Press, 2003).

(17) For example, Herbert Morris, "A Paternalistic Theory of Punishment," American Philosophical Quarterly 18 (1981): 263-71.

(18) For further discussion, see Victor Tadros, "Rethinking the Presumption of Innocence," Criminal Law and Philosophy 1 (2007): 193-213.

(19) Husak, Overcriminalization, 136.

(20) As Husak himself realizes. See his discussion of the "negative" utilitarian claim. Ibid., 189.

(21) Victor Tadros, "Crimes and Security," Modern Law Review (forthcoming).

(22) Things get complicated, however, as failing to criminalize might sometimes compound injustice to the poor. Hence, economic injustice tends to require the state to compound injustice in one way or another. For further discussion of this, see Victor Tadros, "Poverty and Criminal Responsibility," Journal of Value Inquiry (forthcoming).

(23) Hence, the difference principle is part of the second principle of justice for Rawls. For his considered view of the content of the principles and their relationship, see Rawls, Justice and Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001).

(24) See Duff, Answering for Crime, 137-38, and Tadros, "Crimes and Security," for additional consideration of this point.

VICTOR TADROS *

* Victor Tadros, author of Criminal Responsibility (2005), is Professor of Law, University of Warwick, UK. Email: V.Tadros@warwick.ac.uk
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Title Annotation:SYMPOSIUM
Author:Tadros, Victor
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Date:May 1, 2009
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