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The question of the proper scope of the criminal law—what to punish, and why—is a continuing and difficult one. What new criminal prohibitions should be enacted, and which existing prohibitions should be expanded, narrowed, or eliminated? Since all criminal laws in the United States are created or subject to modification by statute, this question is primarily addressed to the legislature. However, when courts are called upon to interpret the scope of criminal statutes, they sometimes address similar questions, either as a matter of presumed legislative intent, or as a matter of public policy or (very rarely) constitutional interpretation. Police, prosecutors, and other law enforcement officials also sometimes face these issues, when deciding how to interpret and enforce existing criminal laws.
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How The Criminal Law Has Been Used and Abused
When most people think about ‘‘crime,’’ they imagine serious, ‘‘common law’’ offenses such as murder, rape, assault, robbery, burglary, and traditional forms of theft, that is, the stealing of tangible property. There have been relatively few changes in the scope of the criminal law in these areas, although major issues of criminalization occasionally arise, for example: whether to permit any form of euthanasia or assisted suicide; how broadly to define rape and other criminal sexual conduct offenses, or crimes against children and fetuses; and whether to recognize broader duties to prevent harm, or new forms of vicarious liability. But the focus of debate on the criminalization question tends to be elsewhere, involving a host of miscellaneous offenses designed to protect public morality, discourage risk creation, support government regulation of the economy, preserve the environment, or otherwise promote the public welfare.
Despite efforts in many states to reform and recodify criminal codes, numerous ‘‘morals’’ and ‘‘public welfare’’ offenses remain on the books, and new offenses of these types are continually being added. Indeed, there appears to be a unidirectional tendency to adopt new criminal laws, without repealing or substantially restricting old ones that are not even enforced. New statutes are enacted in reaction to the scandals or crises of the day, by legislators who are eager to do something about these problems or who wish to demonstrate their strong support for public morality and good order. Rarely does any effective lobbying group or other impetus compel legislators to repeal or restrict existing laws. Moreover, the scope of government regulation and welfare programs has expanded enormously since the late nineteenth century, and each new program has brought with it new penal laws. Criminal penalties have been applied to widely varied activities in the effort to end the killing of endangered species; to regulate automobile traffic; to discipline school officials who fail to use required textbooks; to regulate commerce in foods, drugs, and liquor; to uphold housing codes; and to regulate the economy through price control and rationing laws, antitrust laws, export controls, lending laws, and securities regulations (Allen, 1964; Kadish, 1963; 1967; Packer).
In response to the ever-increasing number of criminal statutes, numerous proposals have been made to define more narrowly the scope of the criminal law and to decriminalize a large number of morals and public welfare offenses. The laws most often proposed for repeal relate to public drunkenness, vagrancy, disorderly conduct, homosexuality, sodomy, fornication, adultery, bigamy, incest, prostitution, obscenity, pornography, abortion, suicide, euthanasia, the use or sale of drugs and liquor, gambling, violations of child-support orders, passing of worthless checks, economic regulatory violations, minor traffic offenses, and juvenile offenses that would not be criminal if the actor were an adult (Allen, 1964; Kadish, 1963, 1967; Packer; Morris and Hawkins, 1970, 1977; Richards, 1982; Schur; U.S. Department of Justice). Some of these offenses have, in fact, been repealed or narrowed in a number of American jurisdictions, and decriminalization efforts have gone much farther in several Western European nations (Frase, 1990; Frase and Weigend).
The authors of decriminalization proposals do not always reject the same offenses, nor do they all agree on a common rationale or criterion for making these decisions. However, there is considerable consensus that many of the laws proposed for repeal are either inappropriately invasive of individual freedom of action, hypocritical, unenforceable, or too costly to enforce. These authors also appear to agree that the scope of the criminal law can and should be defined by a single set of objective, ‘‘neutral’’ principles capable of efficient application to all types of offenses, and should reflect general consensus among reasonable persons of widely differing moral and philosophical views. Such an approach has the advantage of avoiding narrow, subjective disputes about the wisdom of specific laws, although it also has the disadvantage inherent in any abstract, a priori schema. This article will describe the various criminalization criteria that have been proposed and will attempt to reconcile them and present a consensus of the consensus-seekers.
Definition of A ‘‘Criminal’’ Sanction
Before examining the wide variety of issues involved in the choice of the criminal sanction, it is useful to consider what it means to call something a crime and, in particular, how criminal prohibitions differ from various civil laws and regulations. Although criminal penalties tend to be more severe than civil and regulatory remedies, perhaps only the death penalty is unique to the criminal law. Property is taken by taxation, civil fines, civil forfeitures, and compensatory or punitive damages; individual liberty may be denied by such civil procedures as quarantine, involuntary civil commitment, and the military draft. Thus, what principally distinguishes the criminal sanction is its peculiar stigmatizing quality, even when sentence is suspended and no specific punishment follows conviction. Criminal sanctions have traditionally been viewed as expressing society’s strong moral condemnation of the defendant’s behavior and its ‘‘hatred, fear, or contempt for the convict’’ (Henry M. Hart, Jr., p. 405). This is probably still true, despite the dilution of ‘‘moral’’ blame that has resulted from the continuing expansion of the criminal law.
A second distinguishing feature of the criminal law, which follows naturally from the special stigma and severe sanctions that may be imposed, is the strict procedure of adjudication required. As a matter of constitutional law, criminal defendants are entitled to proof beyond a reasonable doubt, the privilege against compelled self-incrimination, and numerous other procedural guarantees. Criminal statutes may also violate due process if they are unduly vague (City of Chicago v. Morales, 527 U.S. 41 (1999)), and they are traditionally construed narrowly, both as a matter of public policy and as a means to avoid unconstitutional vagueness problems.
A third distinguishing feature of the criminal law, which follows in part from the first two, is that it employs specialized agencies of enforcement: police, prosecutors, criminal courts, and correctional agencies focus their efforts largely or entirely on the criminal law.
Criminal procedures and enforcement agencies are, however, sometimes also used to enforce ‘‘civil’’ sanctions. In Minnesota, for example, most moving-traffic violations, violations of certain ordinances, and numerous other minor offenses are classified as petty misdemeanors (punishable by a fine of up to $200); these are not deemed to be ‘‘crimes’’ (Minn. Stat. Ann. § 609.02, subd. 4a (2000)), but they are enforced by the police and criminal courts, and are governed by the code of criminal procedure (Minn. Rule of Crim. Procedure 1.01 (2000)). A similar hybrid offense category, classified as a ‘‘violation,’’ is recognized under the Model Penal Code, section 1.04 (5), and under the laws of many European countries (Weigend). The latter, known as ‘‘administrative penal law,’’ often includes violations that would be deemed ‘‘crimes,’’ subject to jail or prison terms, in most American jurisdictions (Frase, 1990); such downgrading of offense classification, and resulting lower penalties, stigma, and procedural requirements, constitutes a form of partial ‘‘decriminalization.’’
The moral condemnation and stigmatizing effect of criminal penalties is related to one of the traditional purposes of criminal sanctions: to exact retribution by imposing ‘‘deserved’’ punishment in proportion to the offender’s blameworthiness. Retribution is a nonutilitarian ethic that views punishment as being proper for its own sake, whether or not it has any effect on future wrongdoing by the offender or others. Various utilitarian theories, on the other hand, justify punishment because it discourages the offender from future wrongdoing (special deterrence), intimidates other would-be offenders (general deterrence), and strengthens behavioral standards in more indirect ways (the educative or moralizing function of punishment). Punishment sometimes also prevents further crime by the defendant through physical restraints on his liberty or privileges (incapacitation), or through education or other treatment aimed at changing underlying psychological or physical causes of his criminal behavior (rehabilitation) (Packer; Zimring and Hawkins). Clearly, the extent to which the enactment or enforcement of criminal penalties actually achieves any of these purposes of punishment must be an important factor in deciding whether to apply criminal sanctions to a given type of behavior.
How does the criminal law achieve these purposes, that is, what types of criminal sanctions are available? In addition to the punishments listed or implied above (death, imprisonment, fines), defendants may be given a conditional sentence (of imprisonment or a fine, or an unspecified (deferred) sentence). A conditional sentence is not carried out if the defendant complies with certain restrictions or requirements, such as periodic reports to a probation officer or other supervisor; limitations on travel, place of residence, or associates; home detention or electronic monitoring; abstinence from liquor or drugs; periodic random tests for drug or alcohol use; restitution to the victim; community-service work; participation in educational, counseling, or medical treatment programs; and refraining from further criminal behavior.
Persons convicted of crimes may also lose certain privileges or suffer other disabilities, either automatically or at the discretion of various officials (Schonsheck). These include revocation or denial of a driver’s license or other permit; ineligibility for government or private employment, public office-holding, and government programs or contracts; loss of voting and other civil rights; forfeiture of property gained from or used to commit the crime; liability to greater penalties upon subsequent convictions; and loss of credibility as a witness, through rules permitting impeachment by prior convictions.
As suggested earlier, many of these sanctions can also be imposed by means of civil or regulatory procedures. The U.S. Supreme Court has had some difficulty in determining which of these various civil-criminal hybrids (in particular, involuntary civil commitment of dangerous persons, civil fines, civil forfeitures, and occupational disqualifications) are subject to constitutional criminal procedures. After some vacillation, the Court, in a series of cases decided in the late 1990s, seemingly held that constitutional criminal procedures are either fully applicable or do not apply at all; such procedures will be deemed applicable only to offenses that are labeled as criminal or which are overwhelmingly punitive in purpose or effect (Klein). However, at least some forfeitures are subject to the excessive fines clause of the Eighth Amendment (United States v. Bajakajian, 524 U.S. 321 (1998)), and principles of due process prohibit ‘‘grossly excessive’’ awards of punitive damages (BMW of North Am., Inc. v. Gore, 517 U.S. 559 (1996)).
How should one treat such quasi-criminal penalties when approaching the criminalization problem? Although they all could be viewed as criminal laws, this research paper initially adopts a narrower approach and defines criminal laws as those that are generally labeled or regarded as criminal in a formal sense, enforced by the police and other traditional criminal justice agencies, and subject to constitutional and nonconstitutional rules of criminal procedure. However, it will be necessary at some point to consider the various hybrids as well. In its broadest sense, the criminalization question thus becomes several questions: Should the behavior in question be prohibited or regulated by law? If so, to what extent? What role should be given to purely civil or administrative laws, quasi-criminal sanctions, and formal criminal penalties? Which agencies should enforce these prohibitions and sanctions?
A Review and Typology of Criminalization Arguments
It is useful at the outset to distinguish between three fundamentally different types of arguments for and against the use of the criminal law. Arguments of principle assert that as a matter of political or moral philosophy, it is proper (or improper) to prohibit certain conduct. The second category, that of arguments of practicality, is logically relevant only if it has been determined that society may legitimately prohibit the conduct in question; practical arguments assert that, although legitimate, certain prohibitions are unwise because in practice they cause more harm than good. A third approach rejects the feasibility of devising a workable standard based on the substance of criminal prohibitions, and argues instead for additional procedural limitations on criminalization decisions and criminal law enforcement.
Arguments of Principle
The broad question of whether, and to what extent, the law may enforce morality represents one of the classic debates in philosophical and criminal law literature. This debate has tended to focus on the use of formal criminal sanctions, and most of the arguments appear to make no distinction between criminal and noncriminal measures. Of course, if the law may not legitimately interfere at all with certain behavior, then neither criminal nor civil sanctions may be used. On the other hand, if the law may legitimately interfere, there is the further question of whether it is legitimate, necessary, or desirable to use criminal sanctions.
Arguments in Favor of Prohibition
Some writers have argued that society is permitted, and perhaps even obligated, to enforce morality by means of criminal or other legal sanctions. There are at least two distinct variations of this argument. What H. L. A. Hart calls the ‘‘conservative thesis’’ asserts that the majority in society have the right not only to follow their own moral convictions but also to preserve their ‘‘moral environment’’ as a thing of value and to insist that all members of society abide by their moral convictions (p. 2; see also Stephen). What H. L. A. Hart calls the ‘‘disintegration thesis’’ asserts that public morality is the ‘‘cement of society,’’ which must be maintained to prevent social disintegration (p. 1). A major proponent of this thesis was Patrick Devlin, who argued that the law should protect society’s political and moral institutions and the ‘‘community of ideas’’ necessary for people to live together. Devlin wrote, ‘‘Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies’’ (p. 22).
Even if it is conceded that the legal enforcement of morality is legitimate, however, several practical difficulties arise: whose ‘‘morality’’ is to be enforced, and how much of it? Although the United States has a highly ‘‘moralistic’’ criminal law (Morris and Hawkins, 1970), many types of behavior that would generally be considered ‘‘immoral’’ have never been considered criminal—for example, most breaches of contract (Packer). The nineteenth-century jurist James Fitzjames Stephen suggested that the criminal law should be limited to ‘‘extreme cases . . . [of] gross acts of vice,’’ that public opinion and common practice must ‘‘strenuously and unequivocally condemn’’ the conduct, and that ‘‘a moral majority must be overwhelming’’ (1967 ed., pp. 159, 162). Although he saw no possibility of setting theoretical or a priori limits on the power of the law to enforce morality, Patrick Devlin conceded the need for ‘‘toleration of the maximum individual freedom that is consistent with the integrity of society’’; only if the majority has ‘‘a real feeling of reprobation, intolerance, indignation and disgust’’ for the conduct may it be prohibited (pp. 16–17). But how are such judgments to be made, and by whom? Devlin answered that the standard should be that of the ‘‘reasonable’’ person, or the typical juror, because the ‘‘moral judgment of society must be something about which any twelve men or women drawn at random might after discussion be expected to be unanimous’’ (p. 15).
Although these formulations do suggest some limiting principles, they provide little concrete guidance to legislators. Moreover, in an increasingly secular, pluralist society there is less and less consensus about fundamental moral principles, and some doubt whether twelve persons ‘‘drawn at random’’ would be unanimous about anything. (However, as discussed more fully below, Stephen’s and Devlin’s overwhelming-moral-consensus standards do suggest potential procedural limits on criminalization decisions.) Finally, in deciding how much of morality to enforce with the law, there is no inconsistency in also considering the practical advantages and disadvantages of attempting to prohibit certain conduct. Indeed, Devlin accepted this, citing such practical considerations as the extent to which enforcement would be ineffective or would inevitably violate rights of privacy (pp. 18– 22).
Principled Arguments Against Criminalization
In sharp contrast to Devlin, other writers have argued that the law may not legitimately prohibit certain behavior. The classic statement of this position was made by the nineteenthcentury English philosopher John Stuart Mill, who argued that society may interfere with the individual’s freedom of action only ‘‘to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant’’ (1946 ed., p. 15). Mill believed that the individual must be accorded the maximum degree of liberty and autonomy that is consistent with the rights of others. Although writers such as Devlin concede the importance of protecting individual liberty, Mill and his followers appear to give this factor much greater weight. They view the individual’s freedom and self-determination as preeminent rights, which outweigh mere utilitarian considerations of the greatest good for the greatest number (Richards, 1979a, pp. 1222–1223).
To some extent, the Supreme Court and some state courts have adopted this approach, holding that individual rights of privacy and free expression, implicit in the First, Fourth, and Ninth Amendments, prevent the state from prohibiting certain acts that cause no direct injury to any other person (Griswold v. Connecticut, 381 U.S. 479 (1965) (use of contraceptives); Stanley v. Georgia, 394 U. S. 557 (1969) (possession of obscene material in the home); Roe v. Wade, 410 U.S. 113 (1973) (abortion during the first three months of pregnancy); Ravin v. State, 537 P.2d 494 (Alaska 1975) (possession of marijuana in the home); Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980) (sodomy between consenting adults in private)). The Supreme Court has also held that, under certain limited circumstances, the ban on cruel and unusual punishments, and principles of due process or equal protection, preclude criminal liability for morals or regulatory offenses (Robinson v. California, 370 U.S. 660 (1962) (‘‘status’’ crime of being an addict); Lambert v. California, 355 U.S. 225 (1957) (crime of failing to register as a convicted person, with no showing of reasonable opportunity to become aware of the duty to act); Loving v. Virginia, 388 U.S. 1 (1967) (interracial marriage)). On the other hand, the Court has also stated that broad deference should be given to legislative judgments about the wisdom of prohibiting certain conduct, even if those judgments are based on moral assessments. Thus, for example, the Court has upheld punishment of obscenity in a private theater to which access was limited to consenting adults (Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973)), and has also upheld criminalization of private acts of sodomy between consenting adults (Bowers v. Hardwick, 478 U.S. 186 (1986)).
Analysis of the earlier quotation from Mill reveals several distinguishable justifications for punishment: individuals might be punished for their own ‘‘moral’’ benefit, for their own ‘‘physical good,’’ or to prevent ‘‘harm to others.’’ Modern writers have tended to agree with Mill that the first purpose is clearly improper: as far as the law is concerned, the individual has ‘‘an inalienable right to go to hell in his own fashion, provided he does not directly injure the person or property of another on the way’’ (Morris and Hawkins, 1970, p. 2).
However, most modern writers do not share Mill’s total opposition to prohibitions aimed at protecting the defendant’s physical well-being. Mill apparently felt that paternalism was a rationale too easily abused (Richards, 1979b, p. 1424), but modern authors seem more willing to recognize some limited version of this rationale. Mill did approve of laws to protect children from their own lack of judgment, and some modern writers have broadened this justification to include protection against exploitation and corruption of other especially vulnerable groups, including those ‘‘weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence’’ (The Wolfenden Report, para. 13; Morris and Hawkins, 1970; H. L. A. Hart; Feinberg, vol. 3). Other writers maintain that individuals must be given the maximum freedom to make choices that they may later regret; these writers would narrowly limit paternalism to cases of extreme irrationality or nonrationality ‘‘likely to harm irreparably serious human interests,’’ such as rationality, freedom, or life itself (Richards, 1979b, p. 1424).
As for Mill’s third category, ‘‘harm to others,’’ it is unclear to what extent he would have distinguished between tangible and intangible harms. If intangible harms include the weakening of ‘‘public morality,’’ there is obviously little point to Mill’s other limitations. A related problem involves the use of the criminal law for ‘‘verbal vindication of our morals’’ (Kadish, 1967, p. 162), with no serious effort actually to enforce the law. Since such symbolic legislation provides intangible benefits to ‘‘others,’’ and does not directly inhibit the individual’s freedom of action or punish him for his own moral benefit, how does it violate either the letter or the spirit of Mill’s philosophy? Modern followers of Mill usually respond with practical arguments about the collateral disadvantages of unenforced law (for example, diminished respect for law), rather than with arguments of principle (Kadish, 1972).
Also problematic is Mill’s support for laws punishing offenses against public ‘‘decency’’ (Mill; H. L. A. Hart; Morris and Hawkins, 1970; Richards, 1979a). The offense caused to the ‘‘victims’’ of public indecency seems different in degree, but not in principle, from the revulsion that such victims feel toward similar acts performed in private. However, one distinction is that prohibition of public solicitation, nudity, and other ‘‘indecencies’’ does not totally eliminate the freedom of the individual to engage in such behavior (in private), or in the presence of those who are not offended. Nevertheless, the result is to limit individual freedom for the sake of preventing an intangible harm to others.
Another intangible harm to others, recognized by at least one modern follower of Mill as a proper justification for punishment, is the breach of promises of marital fidelity (Richards, 1979a). Traditional laws prohibiting adultery, bigamy, and prostitution would seem to be justified on this basis, yet the same author opposes such laws, apparently on the ground that they are over- or under-inclusive. That is, these laws purportedly cover some conduct that poses no threat to fidelity, yet they fail to punish other conduct that clearly does pose such a threat.
A third category of harm that might be viewed as intangible, at least from the point of view of human beings, is that of cruelty to animals. Several modern followers of Mill’s philosophy appear to support prohibitions against such cruelty (H. L. A. Hart; Morris and Hawkins, 1970), without considering whether these laws are consistent with the harm-to-others criterion.
As for more tangible harm to others, such as physical injury or property loss, there is widespread agreement with Mill’s position that this is a proper basis for punishment. However, as Herbert Packer has pointed out, it is almost always possible to argue that a given form of conduct involves some risk of harm to the interests of others; the harm-to-others criterion is thus a matter of degree—‘‘a prudential criterion rather than a hard and fast distinction of principle’’ (p. 266). Packer goes on to argue that the risk of harm to others must be ‘‘substantial’’ and unjustified by reasons of social utility. He also asserts that the harm should not be trivial in two senses: it should not be so minor that the imposition of any criminal punishment would be disproportionate to the social harm caused, nor should it be so minor that law enforcement and sentencing authorities are unwilling to enforce the law or to make regular use of ‘‘real criminal sanctions,’’ such as imprisonment (pp. 271–273).
Other modern followers of Mill appear to recognize a much broader authority to ‘‘protect the citizen’s person and property’’ (Morris and Hawkins, 1970, p. 4). Difficult problems of remoteness of harms are also posed by conduct that, if widely practiced, might cause serious social disorganization—for example, drug addiction. Thus, one court, while upholding the right to use marijuana in the home, implied that such use could be punished if it ever became so widespread that it might ‘‘significantly debilitate the fabric of our society’’ (Ravin, supra, p. 509).
A strict application of the Mill philosophy thus poses a number of difficulties. As noted above, it is difficult to find a ‘‘pure case’’ of behavior that harms no one but the actor (Dripps). Clearly, however, the extent of harm to others, both in seriousness and probability, is an important factor to be considered in the criminalization decision. Second, depending on how broadly ‘‘harm to others’’ is defined and on how willing we are to recognize paternalistic legislation, the Mill principle may not be all that limiting, particularly if it is recognized that the legislature has at least some discretion to be both over- and under-inclusive in pursuit of its goals. Third, to the extent that a strict interpretation of Mill’s philosophy is based on an elaborate theory of the moral or human rights of the person (Richards, 1979b), this approach to criminalization may prove too vague or too subjective to command broad consensus and application. Fourth, Mill and his followers offer little guidance in the choice of various noncriminal sanctions; indeed, a strict reading of the Mill philosophy would invalidate not only civil and criminal penalties but any interference with individual ‘‘liberty of action,’’ including, for example, steep excise taxes on tobacco or alcoholic beverages (Greenawalt, p. 719). Finally, there is no reason why ‘‘moral’’ arguments against criminalization should preclude consideration of practical disadvantages as well, particularly since most of the moral arguments do not lend themselves to definitive, ‘‘bright line’’ distinctions.
Arguments of Practicality
Although modern advocates of decriminalization have often cited Mill’s philosophy in support of their arguments, they usually go on to argue that even if prohibition might be legitimate, it is unwise. One group of writers argues that all ‘‘victimless’’ crimes should be repealed. A less simplistic approach seeks to catalog the specific advantages and disadvantages of trying to prohibit certain behavior, and argues that, on balance, the total ‘‘costs’’ of criminalization often outweigh the benefits.
The concept of victimless crime is frequently suggested as a basis for decriminalization (Schur). The term itself is somewhat misleading, since it has been applied to offenses such as public drunkenness and adultery, which often have direct, readily identifiable ‘‘victims.’’ Furthermore, it is arguable that most other so-called victimless crimes, such as drug offenses and prostitution, do have at least potential victims: the participants themselves, relatives, taxpayers, or society at large. The users of this term tend to stress the practical disadvantages of trying to enforce victimless crimes—for example, that the lack of complaining witnesses leads to the use of intrusive police practices, bribery, and discriminatory enforcement. However, many of these problems arise in the enforcement of criminal laws that have not been labeled as victimless or proposed for repeal (for example, carrying an unregistered weapon). The victimless crime concept may draw some of its rhetorical appeal from largely unarticulated philosophical premises: if a crime is truly victimless, efforts to enforce it may not only be difficult but illegitimate (Morris and Hawkins, 1970). But whether the victimless crime criterion is best viewed as an argument of principle or one of practicality, the concept is of very limited utility in deciding the more difficult issues of criminalization. The criterion lacks a clear definition, fails to cover some of the offenses to which it has been applied, and applies equally well to other offenses that have not been proposed for repeal. The relative victimlessness of an offense is closely related to several important practical issues in the criminalization decision (discussed below). However, labeling a crime as victimless only begins what is, in most cases, a very difficult process of assessing complex empirical facts and fundamental value choices.
The Cost-Benefit Approach
A more sophisticated (but less rhetorically effective) practical approach to the criminalization question seeks to identify the specific advantages and disadvantages of invoking the criminal law, in an effort to determine whether the total public and private ‘‘costs’’ of criminalization outweigh the benefits (Kadish, 1967). Strictly speaking, cost-benefit analysis involves the weighing of variables that are measurable in dollars or other quantitative units. The proponents of a cost-benefit approach to criminalization generally concede that there is little quantitative data in this area, but they argue that the approach is still a useful way of thinking about criminalization problems (Kadish, 1972).
The costs of criminalization include public and private burdens, both tangible and intangible. Beginning with tangible public costs, it is necessary (but often difficult) to separate out the police, court, attorney, and correctional expenditures properly attributable only to the enforcement of a specific criminal law. (Occasionally this ‘‘marginal’’ cost is fairly clear—the salaries and expenses of the police narcotics division, for example.) In some cases, apparent costs may not entirely disappear with decriminalization: many of the previous enforcement efforts (such as collecting and jailing public drunks) may have simply taken up the slack in police and jail resources that must still be maintained to handle peak loads. Moreover, decriminalization may require the police and other public officials to respond to the underlying behavioral problem in alternate ways that have their own costs: in the example above, removal of penalties for public drunkenness may lead to more arrests for disorderly conduct, or may increase the use of costly public and private medical facilities.
Private costs of criminalization include not only concrete items such as attorneys’ fees and other litigation expenses, but also several factors that are harder to measure. These include the individual’s loss of the freedom, pleasure, or other value derived from engaging in the forbidden conduct (for example, having sex with a prostitute; owning firearms); the anxiety and social ostracism imposed upon offenders, whether or not they are detected and prosecuted; the reduction or elimination of the offender’s economic earning power during the period of pretrial and trial proceedings, while sentence is being served, and perhaps for the rest of his life; detention and other losses of physical freedom, before and after conviction; and the uncompensated costs and inconveniences imposed on witnesses and jurors.
Another set of costs, which may affect both public and private interests, is the tendency of criminalization to produce more, rather than less, socially undesirable behavior. Examples of illegal behavior that may result from criminalization are bribery of the police or other enforcement officials; extortion by officials of money or other favors in return for nonenforcement; private blackmail by threats to expose the offender; discriminatory enforcement of the law against unpopular groups or individuals, or in favor of defendants with more political or social influence; and the use of illegal methods of obtaining evidence, such as unauthorized searches and electronic surveillance, coercive interrogations, and entrapment. Indeed, some categories of crimes (for example, vagrancy and disorderly conduct) seem to have been specifically designed to undercut constitutional limitations on arrest, search, and interrogation (Kadish, 1967).
Even where the methods of law enforcement are not clearly illegal, they may be so contrary to widely held feelings of privacy or fairness that they cause a lowering of public respect for the law, particularly among social groups already alienated from society, including ethnic minorities and the poor. Examples of such questionable tactics include selective enforcement in order to conserve resources; the use of undercover agents, decoy officers, and informers from the criminal milieu who are paid in money or leniency; arrests for purposes of harassment or to ‘‘clean the streets,’’ with no effort to prosecute; and ‘‘legal’’ searches, electronic surveillance, and intrusive physical surveillance (for example, peering through holes in the ceilings of public washrooms in order to observe possible homosexual or narcotic offenses). As may be noted, the problems listed above arise primarily when the behavior involves consenting parties and few, if any, witnesses. It is partly this relative invisibility of victimless crimes that makes their enforcement so costly.
Criminal laws may violate principles of equal justice even if not intentionally enforced in a discriminatory or selective manner. For example, poor or uneducated women are less likely to obtain a safe, although illegal, abortion and thus must either bear unwanted children or suffer the risk of death or severe medical complications. Efforts to enforce prostitution laws against ‘‘call girl’’ operations are costly and difficult, and therefore most arrests of prostitutes involve street solicitations by lower-class or minoritygroup women (Morris and Hawkins, 1970). Drug-law enforcement is likewise heavily biased against poor, nonwhite street dealers and users (Tonry). Unequal justice is inherently wrong, but it also has important practical consequences. Perceptions of unfairness, either in the law’s procedures or its impact, undercut the legitimacy of legal prohibitions, making citizens less willing to obey the law (Tyler).
Other costs of criminalization arise when the prohibited conduct involves goods, activities, or services that are in great demand, such as gambling, drugs, liquor, illegal weapons, abortion, commercial sex, and pornography. When there is high demand, prohibition tends to limit supply more than demand, thus driving up the blackmarket price and creating monopoly profits for those criminals who remain in business. Organized criminals tend to have advantages over less organized ones in exploiting illegal markets and coping with law enforcement pressures, and consequently, criminalization tends to foster the growth of sophisticated, well-organized, and powerful criminal groups. Once in existence, organized crime tends to diversify into other areas of crime. Its high profits provide ample funds for bribery of public officials, as well as capital for diversification. Finally, whether or not the participants in black markets are highly organized, they tend to use violence to resolve their disputes; thus, the enactment and increased enforcement of alcohol and drug prohibitions in the twentieth century led to increased rates of lethal violence (Miron).
Although higher prices tend to discourage some would-be participants in prohibited activities, the underlying high demand, combined with restricted supply, maintains both high prices and high participation rates. In extreme cases of high and inflexible demand (for example, heroin or cocaine addiction), exorbitant prices force many participants to commit other crimes to pay for the illegal goods or services they want. These are generally nonviolent property crimes, such as shoplifting, or other forms of vice such as prostitution or sale of drugs, but violent property crimes may also be encouraged. Finally, because the illegal goods or services are in great demand, a large number of otherwise lawabiding citizens are driven into association with the criminal elements who supply these goods and services. There is a danger that these citizens will come to view themselves as criminals, since society labels them as such. As members of the criminal subculture, they may lose respect for the law and are more likely to be drawn into other forms of crime.
Another concrete cost of criminalization is the barrier that the law erects between the criminal and important social services and protections. For example, when the law forbids abortion or drug use, consumers are forced to make use of unsanitary instruments or medically unsound procedures, increasing the risk of death, injury, or infection (to themselves and, in the case of HIV, to all of their sexual or syringesharing partners). If harm occurs they are unwilling to seek the medical attention they need, for fear of exposing their criminal behavior; pregnant drug users may avoid all prenatal care. Laws against prostitution and homosexuality may have a similarly adverse effect: participants who contract a venereal disease are less likely to seek timely medical treatment. Moreover, although prostitution laws seek to prevent the exploitation and physical abuse of female prostitutes by their pimps, the existence of criminal penalties and enforcement efforts probably makes women more likely to seek the support and protection of the pimp, while discouraging them from seeking legal protection from exploitation and abuse.
Further costs of criminalization include overloading the criminal justice system with a mass of petty cases; creating a law enforcement bureaucracy with a ‘‘vested interest in the status quo’’ (Packer, p. 333), thus thwarting efforts at reform or even research; and fostering the illusion that a social problem has been taken care of, thereby discouraging the development of more effective alternative measures (Kadish, 1967).
Finally, it can be argued that extending the criminal law to behavior that is widely believed to be morally neutral or that is engaged in by the vast majority of citizens dilutes the stigmatizing quality of criminal sanctions generally, thus robbing them of their peculiar effectiveness in dealing with more serious conduct (Packer; Kadish, 1967). Of course, lack of widespread moral condemnation may also make the law difficult or impossible to enforce, thus limiting the benefit of prohibition.
Benefits of Criminalization
On the other side of the ledger, the benefits achieved by criminalization fall into several categories. To the extent that the criminal law is enforced with a view toward preventing specific social or individual harms, the likelihood of achieving such preventive benefits depends on the following factors:
- The probability that the behavior defined as criminal will be observed or detected by anyone other than the immediate participants;
- The probability that various parties will invoke formal criminal processes—that witnesses or participants will report the crime to the police and support prosecution efforts, that the police will be able and willing to make an arrest, that the prosecutor will approve the filing of formal charges, and that judges and juries will be able and willing to find the defendant guilty and impose significant sanctions;
- The likelihood that conviction and sentence will reduce the future incidence of the behavior defined as criminal, either through general deterrence of other potential offenders, the ‘‘educative’’ effect of punishment, special deterrence or rehabilitation of the punished offender, or incapacitation of the offender; and
- The likelihood that reducing the incidence of the behavior defined as criminal will reduce any more remote harms sought to be prevented (for example: the likelihood that reducing acts of drunken driving at low alcohol-concentration levels will reduce accident frequency or severity).
Of course, to the extent that punishment of criminal behavior is considered proper for its own sake (to impose ‘‘deserved’’ punishment, for example), the last two factors are irrelevant.
Even if criminal prosecution is not successful or is not even attempted, the mere existence of criminal prohibitions might have some indirect effect on the incidence of the behavior defined as criminal and thus, even more indirectly, on any more remote harm to be prevented. The labeling of behavior as criminal represents a social judgment that such behavior is morally wrong or at least undesirable, and this judgment may serve to reinforce similar feelings among members of the public. As with actual enforcement efforts, the extent of this symbolic effect depends on the strength of the perceived relationship between the prohibited behavior and the more remote social harm, if any, sought to be prevented (for example, the relationship between euthanasia and the devaluation of human life). Another important set of considerations here involves attitudes about unenforced law; to the extent that most people believe that the law should either be enforced or repealed, unenforced law promotes cynicism and disrespect for the law, particularly the criminal law (Kadish, 1967). Thus, legislative attempts to denounce certain behavior symbolically, with no intention or ability to enforce the law, may do more harm than good.
Perhaps the most critical determinant of the total ‘‘benefit’’ of criminalization, whether by means of actual enforcement efforts or symbolic denunciation, is the importance of the social harm involved. In the case of heroin possession or sales, for example, it must be decided how seriously society views the use of heroin itself—as well as undesirable behaviors (e.g., driving) of persons under the influence of heroin, and the risk of heroin addiction—in order to decide whether the costs of criminalizing heroin use and sale are worth bearing. A host of tangible and intangible factors must then be considered: the values of human rationality and full consciousness; the losses of life and health that are not attributable to prohibition itself; the potential loss of the economic productivity of users; and perhaps even the anguish that heavy use or addiction may impose on relatives and close friends of the user.
Costs and Benefits of Noncriminal Measures
Even if the benefits of criminalization exceed the costs, proponents of the cost-benefit approach point out that various civil, administrative, or regulatory measures may be more effective than criminal sanctions, less costly, or both. Examples of such noncriminal alternatives include the zoning or licensing of pornography and prostitution (Richards, 1979a); civil detoxification or civil commitment of public drunks (Kadish, 1967); medically supervised distribution of maintenance doses to heroin addicts (Morris and Hawkins, 1970); the use of civil fines for certain drug, traffic, and other minor violations; heavy taxation of unhealthy products; and general preventive measures such as product labeling and television advertising, seeking to discourage certain activities. Each such alternative must be subjected to a weighing of costs and benefits; whichever approach (criminalization or some alternative) produces the greatest excess of benefits over costs is the approach that should be followed, and if no approach produces a net benefit, then the ultimate alternative is to do nothing at all (Packer).
There are several reasons why noncriminal measures may be more effective or less costly than criminal sanctions. As discussed earlier, the former may not be subject to the strict procedural requirements applied to criminal statutes, and the personnel who administer noncriminal sanctions may be less highly trained and paid. An alternative solution to the problems of proving guilt in criminal cases would be to redefine crimes by reducing or eliminating the traditional criminal law requirement of culpable mental state (mens rea) or the requirement of personal guilt, thus imposing strict liability or vicarious liability for the acts or omissions of others. However, the latter alternatives create new problems of enforcement. To the extent that the redefined prohibited behavior is not generally viewed by witnesses, police, prosecutors, judges, and juries as morally blameworthy, criminal penalties will not be fully enforced (Kadish, 1963), whereas civil penalties for the same behaviors might be viewed as an appropriate compromise between condemning and condoning the behavior in question. Finally, noncriminal procedures may be better adapted to controlling and regulating violations of a continuing nature. An injunction proceeding, for example, uses past misconduct to formulate a rule of behavior specifically tailored to the situation, and then makes use of rather summary contempt proceedings each time that rule is violated in the future. Similarly, licensing and inspection regimes are better suited to detecting and enforcing limits on particularly problematic aspects of ongoing behaviors (for example, venereal disease among prostitutes). One of the key lessons of alcohol prohibition and its repeal is that it is not possible to effectively regulate behavior that is criminally prohibited (Morris and Hawkins, 1977).
On the other hand, noncriminal procedures are not always less costly or more effective than criminal penalties. Courts have occasionally applied criminal law procedural requirements to violations labeled as civil, because of the penalties authorized, the punitive intent of the legislature, or other indexes of punishment. In Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P. 2d 52 (1977), for example, the court invalidated an attempt to decriminalize first-offense drunk driving and dispense with right-to-counsel and proof-beyond-reasonable-doubt guarantees. Even the requirements of civil due process may make enforcement difficult and costly. For example, Heap v. Roulet, 23 Cal. 3d 219, 590 P. 2d 1 (1979), held that state constitutional due process required proof beyond a reasonable doubt, as well as a unanimous jury in civil conservatorship and commitment proceedings. Moreover, the abuses of discretion and other nonfinancial costs of criminal law enforcement are not necessarily avoided by the use of civil enforcement procedures: civil inspectors and regulators would seem just as likely to discriminate invidiously, take bribes, use intrusive means of detection, and the like. Indeed, to the extent that noncriminal alternatives are governed by lower standards of proof and procedure, and enforced by less highly trained personnel, we might expect the results to be less reliable and more subject to abuse, and we should also expect these less formal procedures to be invoked much more often. Past experience with informal measures such as the juvenile court and pretrial diversion suggests caution in abandoning the procedural protections of the criminal law (Allen; Morris).
In terms of the effectiveness of sanctions, there are undoubtedly certain types of behavior that cannot be adequately controlled without the use of the criminal law. Given its greater stigmatizing effect and more severe penalties, the criminal law is more likely, all things being equal, to prevent future offenses through deterrence (general and special), norm-reinforcement, or incapacitation. Criminal penalties also have greater retributive impact. Moreover, even where the behavior in question (for example, nonpayment of support) can generally be prevented and controlled without the use of the most severe penalties, there is often a need to retain the criminal law to deal with aggravated cases and to encourage cooperation with lesser forms of regulation or treatment (Morris and Hawkins, 1970), as well as for the occasional case where the criminal law’s coercive detention and investigatory powers are needed. Although efforts can and should be made to define the scope of the criminal law as narrowly as possible in these areas, the traditional reliance on administrative discretion to tailor the penalties to the offense reflects, in part, the difficulty of specifying in advance precisely when criminal penalties and procedures are appropriate.
The last and perhaps the most important step in the cost-benefit analysis is to consider whether, in a world of limited resources, the time and money spent attempting to control the behavior in question would be better spent elsewhere. A major criticism of attempts to prohibit such offenses as drunkenness, prostitution, and drug use is that these cases overload the police, courts, and correctional systems; thus these offenses distract those systems from their more important task of preventing serious crimes against persons and property and reduce the quality of justice in serious and nonserious cases alike. Implicit in this criticism is the assumption that other offenses are more socially harmful, easier to detect and prosecute, or subject to fewer collateral costs (police corruption and the like). The assessment of priorities thus involves yet another level of cost-benefit analysis, focusing on the marginal benefit that would be achieved by shifting resources from one type of offense to others. This analysis applies to resources spent on noncriminal as well as criminal sanctions. Finally, one must also consider whether it would be better to shift the resources completely away from law enforcement into other social uses, such as education or health care.
To summarize, the cost-benefit approach first examines the various costs and benefits of using the criminal law to control the behavior or social harm in question. If the costs outweigh the benefits, criminal prohibition is rejected. Even if the benefits of criminalization outweigh the costs, however, it is necessary to consider whether some noncriminal form of prohibition or regulation would produce not only a net benefit but a greater net benefit than criminalization. If neither criminalization nor a noncriminal alternative produces a net benefit, then the solution is to do nothing or leave the matter up to existing remedies and procedures—such as private civil damages actions—that exist for nonpunitive, nonregulatory reasons. If there is a net benefit, whichever form of prohibition yields the greatest net benefit must then be compared with the alternative uses of the resources involved, to see whether these resources would produce a still greater benefit if applied elsewhere (to control different behaviors, or for other public purposes).
Critique of The Cost-Benefit Approach
In theory, the approach described above covers all relevant considerations and has the further advantage of relying, as much as possible, on matters that are subject to empirical verification. However, it seems unlikely that we will ever obtain reliable data on most of the relevant cost and benefit variables, and what data we have on each variable may not be commensurate with data on other variables. How does one compare, for example, the public safety benefits of extending drunk-driving prohibitions to lower alcohol concentrations, with the increased costs of enforcement—not only financial costs, but also lost freedom of action by drivers who would not have caused any public harm if left unregulated? Moreover, the cost-benefit calculus is too complex to provide much practical assistance in making specific criminalization decisions, nor does application of the calculus effectively limit such decisions—results are highly dependent upon the weight given to key variables, and the estimates used where (as is often the case) hard data is lacking. Finally, although practical problems of law enforcement are certainly very relevant considerations, they must not be allowed to overshadow the fundamental value choices that must be made: What purposes of prohibition are legitimate in a free, secular society? How much discretion should lawmakers have in defining prohibitions aimed at achieving concededly legitimate goals? How important are various harms (such as drug addiction) and values (such as the ideal of marital fidelity)? How important are the various unquantifiable costs of criminalization (such as loss of privacy or the right to use drugs or possess weapons for self-defense)?
In light of these complexities, it is tempting to fall back on more simplistic criteria: the law may (or must) enforce morality with few, if any, a priori limitations (Devlin); the law may only seek to prevent ‘‘harm to others’’ (Mill); the law may not violate the ‘‘human rights of the person’’ (Richards, 1979b); ‘‘victimless’’ crimes should be repealed (Schur); and so on. As this research paper has attempted to demonstrate, however, the search for a single, simple criterion is illusory: both in matters of principle and of practicality, criminalization is almost always a question of degree, and seldom a matter of clear-cut alternatives.
The Procedural (Content-Independent) Approach
Given the inherent problems of criminalization arguments based on either principle or practicality, some writers have suggested that a more effective way to limit overbroad criminal laws would be to impose additional procedural limitations on criminalization decisions and criminal law enforcement. Donald Dripps proposes three such limits. First, the enactment of criminal prohibitions should require a two-thirds vote of the legislature, similar to the supermajority vote required to convict on impeachment, propose a constitutional amendment, or approve a treaty. Second, all criminal laws should have a built-in ‘‘sunset’’ provision, requiring reenactment (by two-thirds vote) every ten years. Third, courts should be given greater powers to require even-handed enforcement of criminal laws, thus increasing political pressures to limit their scope. Although Dripps admits that current equal protection doctrine is much narrower, he suggests that it might only be necessary to extend existing rules which, upon a showing of disparate impact on identifiable racial minorities, require the government to prove the absence of discriminatory intent.
Dripps’s super-majority and sunset requirements are designed to prevent the enactment or continued enforcement of laws that are, or later become, strongly opposed by a substantial minority of citizens. These two requirements are thus consistent not only with the views of writers who argue for penal restraint based on political pluralism (Allen), but also with statements, summarized earlier, made by some of the most prominent advocates of ‘‘legislating morality.’’ Thus, James Fitzjames Stephen conceded that criminal laws must be based on an ‘‘overwhelming’’ moral consensus; Patrick Devlin agreed that criminal laws must be based on moral judgments as to which a typical jury of twelve would be unanimous. And although Dripps does not go that far, something close to a unanimity requirement seems quite appropriate when the issue is whether to enact or continue the most severe penalties, such as the death penalty or life without parole ( just as we require the most stringent procedures in order to impose the death penalty in any given case). Presumably, such super-majority and sunset requirements would have to be embodied in a constitutional amendment. Although there is reason to doubt that very many legislatures would propose such an amendment, some states permit this to be done by popular referendum.
Other writers have proposed additional, less ambitious procedural incentives for narrow criminal lawmaking. One idea, somewhat parallel to Dripps’s super-majority requirement, is to force legislatures to consider—or even include in current budgets—the full costs of proposed criminal legislation, including costs to be incurred beyond the current budget cycle (Wright). This mechanism is already being used in a number of states with sentencing guidelines commissions, and has helped those states control the growth of their prison populations (Frase, 1995). Another proposal, paralleling Dripps’s sunset rule, is to create a permanent law revision committee or commission, “charged with the task of constant consideration of the fitness and adequacy” of criminal laws and sanctions (Morris and Hawkins, 1970, p. 27).
Synthesis of Criminalization Theories
In the absence of any simple criminalization criterion or effective procedural limits on criminalization decisions, how should legislators proceed? How can the mass of interrelated, often conflicting substantive criteria discussed above provide any concrete guidance in the choice of the criminal sanction? The list below attempts to synthesize the views of classical and modern writers on this subject, and poses a series of questions that hypothetical legislators (or their constituents) should ask themselves.
- What is the specific social or individual harm that the law seeks to prevent or minimize, how important is it, and how likely is it to follow from the behavior sought to be prohibited? Although the law may on occasion seek to go beyond concrete ‘‘harm to others’’ to achieve paternalistic goals (such as the safeguarding of children) or to protect intangible interests (such as ‘‘decency’’ in public places), the dangers of abuse of individual rights increase the closer one comes to basing the law on public morality, intangible harms, or protection of the criminal ‘‘for his/her own sake.’’ In particular, protection of an adult person’s private morality, solely for that person’s own good, would seldom if ever be justifiedin a secular society.
- What are the major pros and cons of criminalization? Like the cost-benefit approach described earlier, this question addresses the practical difficulties of enforcing the law (because, for example, there are few civilian witnesses, or the prohibited behavior is highly desired by the participants), and also takes into account the likely success of criminal penalties in preventing both the prohibited acts and any more remote social harms sought to be prevented. Even if the practical pros and cons cannot be quantified and rigorously compared with each other, their mere enumeration and description helps to ensure that no relevant considerations are overlooked, and may signal the need for legislative caution (even in the absence of supermajority, sunset, or other procedural limitations). One factor that deserves particularly close scrutiny is the long-term financial cost of proposed criminal laws and penalties, particularly when most of the proposal’s benefits are likely to be achieved in the short term.
- Are any noncriminal methods of control more effective or less costly? Here again, the legislator must consider the major advantages and disadvantages of civil, administrative, or quasi-criminal forms of prohibition or regulation. Given the procedural complexities of the criminal law, its more severe stigma and sanctions, and the need to permit the agencies of the criminal law to concentrate their energies on the most serious social harms, noncriminal procedures are often preferable. In such cases, residual, ‘‘last resort’’ criminal penalties will sometimes be necessary, but they should be kept to a minimum, both to avoid problems of discretionary enforcement and to prevent interference with noncriminal procedures (for example, by discouraging prostitutes or drug users from obtaining medical assistance). There are some cases, of course, for which the criminal law and its procedures are peculiarly appropriate, as in dealing with violent or imminently harmful behavior. In other cases, only certain aspects of the criminal law may be needed (such as the arrest powers of the police), but not its severe stigma or sanctions. It may also be administratively convenient to give the police, prosecutors, or other criminal justice agencies responsibility for enforcing certain noncriminal prohibitions, for example, minor traffic offenses. Even where criminal sanctions are retained, it may be possible to reduce enforcement costs and procedural complexity by lowering authorized penalties (since, in general, less serious offenses merit less elaborate procedural safeguards). Ultimately, the assessment of these practical advantages and disadvantages may not be possible without a willingness to experiment and evaluate carefully the actual results of switching to noncriminal modes of control.
- Would the resources devoted to criminal or noncriminal prohibition produce greater benefit if applied to other undesirable behavior, or to public and private purposes unrelated to law enforcement?
- What would happen if all prohibitions or regulatory efforts were discontinued? The alternative of doing nothing is almost always the least expensive, although it is politically the most difficult. Legislators and their constituents like to believe they are ‘‘doing something’’ about social problems, even if this is an illusion; moreover, the removal of all legal prohibitions may encourage the behavior in question, at least in the short run. As with the use of noncriminal alternatives, however, legislators must show a greater willingness to experiment with new approaches; this, after all, is one definition of leadership. Much guidance can be received from those jurisdictions (including those in other nations) that have pioneered deregulation. And of course, prohibition can be reinstated if the results of deregulation are unsatisfactory. The important point is simply that the existence of a criminal prohibition (or even a noncriminal one) must not create any presumption of its own validity. With or without formal ‘‘sunset’’ (required reenactment) provisions, the criminalization question is a continuing one that must be reexamined periodically, without preconditions, by the public and its elected officials. Similarly, new prohibitions should not be casually added without careful consideration of the lessons of past criminalization efforts.
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