Overcriminalization: The Limits of the Criminal LawThe 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. |
Contents
| 3 | |
2 Internal Constraints on Criminalization | 55 |
3 External Constraints on Criminalization | 120 |
4 Alternative Theories of Criminalization | 178 |
Table of Cases | 207 |
| 209 | |
| 225 | |
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Common terms and phrases
alleged ancillary offenses apply behavior believe Cambridge commentators commit conduct construed courts crimes criminal codes criminal justice criminal law Criminal Law Review criminal liability criminal sanction criminal statutes criminal theory culpable defendant deserve Douglas Husak enact example federal H. L. A. Hart harm or evil harm principle hybrid offense identify illicit drug implications imposed inchoate offenses infringe interest intermediate scrutiny internal constraints Joel Feinberg legal moralists legal philosophers legislatures liability drug homicide mala prohibita offenses malum in se malum prohibitum Model Penal Code nontrivial harm normative objective offenses of risk overcriminalization overinclusive Oxford University Press penal sanction persons problem prohibit proscribe proscriptions prosecutors question rationale reason requirement retributive justice risk prevention Rodriguez satisfy sentence specific strict liability strict liability drug substantial substantive criminal law suppose theorists theory of criminalization theory of punishment tion ultimate harm unless utilitarian violate wrongdoing wrongfulness constraint