Overcriminalization: The Limits of the Criminal Law

Overcriminalization: The Limits of the Criminal Law

Overcriminalization: The Limits of the Criminal Law

Overcriminalization: The Limits of the Criminal Law

Synopsis

The United States today suffers from too much criminal law and too much punishment. Husak describes the phenomena in some detail and explores their relation, and why these trends produce massive injustice. His primary goal is to defend a set of constraints that limit the authority of states to enact and enforce penal offenses. The book urges the weight and relevance of this topic in the real world, and notes that most Anglo-American legal philosophers have neglected it. Husak's secondary goal is to situate this endeavor in criminal theory as traditionally construed. He argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself-even though these resources have not been used explicitly for this purpose. Additional constraints emerge from a political view about the conditions under which important rights such as the right implicated by punishment-may be infringed. When conjoined, these constraints produce what Husak calls a minimalist theory of criminal liability. Husak applies these constraints to a handful of examples-most notably, to the justifiability of drug proscriptions.

Excerpt

I have two central objectives in this book. Most obviously, I defend a theory of the limits of the penal sanction to combat the problem of overcriminalization. Still, it is important to recognize that this theory has an even broader application. A theory of criminalization is needed to justify the criminal laws we should retain, as well as to provide the criteria by which we should decide whether to enact even more penal legislation. Because I am more interested in retarding overcriminalization than in achieving these latter objectives, however, the theory I present consists in a number of constraints to limit the criminal sanction rather than a set of reasons to extend it. My second objective is to situate my effort in criminal theory and legal philosophy generally. This goal is no less important than the first. Although I frequently contend that too little work on the topic of criminalization has been done, I argue that the resources to produce such a theory can be found in the wealth of scholarship legal theorists have developed—even though these resources have not been exploited for this purpose.

Legal philosophers who specialize in criminal theory are roughly divisible into two camps. The first is composed of academic philosophers who are extraordinarily knowledgeable about moral responsibility and attempt to apply their insights to issues of criminal liability. Some write whole books (allegedly) about the criminal law while barely mentioning a single case or statute. The second camp is composed of law professors who know a great deal about statutes and cases but are not especially conversant with philosophy. Often their philosophical sophistication does not extend beyond their discussion of how their views would be received within the deterrence and retributive traditions. Of course, the writings of any given legal philosopher fall on a continuum between these two extremes. In any event, I believe that this book lies squarely in the middle of these two camps. I try to be firmly anchored in existing criminal law while drawing heavily from contemporary moral, political, and legal philosophy. Along the way, I also borrow freely from the empirical research of criminologists. I hope that my effort captures the best these disciplines have to offer. I aspire to produce a book that it neither too philosophical for legal theorists nor too legalistic for philosophers.

The second of my objectives accounts for my tendency to cite the relevant contributions of philosophers and legal academics. Readers who share my interest in both philosophy and law are well aware that philosophers use footnotes much less frequently than legal commentators. Because my inquiry is located at the intersection between these two disciplines, I initially sought to compromise in the number of my references. Eventually, my efforts became tilted toward the style favored in . . .

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