Paternalism On Pain of Punishment

Abstract

We overpunish and overcriminalize, Douglas Husak insists in his latest book-length tour de force entitled Overcriminalization: The Limits of the Criminal Law (2008). (1) In what ways and by what measure? In his carefully reasoned, systematic, and provocative analysis of the scope and limits of the criminal law, Husak provides benchmarks by which we can determine to what extent legislators have been overzealous in employing punishment to achieve their regulatory ends. And if Husak is right, we should be deeply concerned about the reach of American criminal law today, because it both prohibits legally what is not prohibited morally and imposes harsh and stigmatizing punishments on those who are not deserving of them. In Husak's view, we are subject to regime that frequently and systemically violates right that is as important as any that citizens can have-the right not to be punished--and we should both fear for our own freedom and be outraged on behalf of those who have already lost theirs unjustifiably. None can fail to admire the breadth of knowledge, both theoretical and empirical, that Husak brings to the defense of these conclusions, and none can fail to become impassioned by his passionate indictment of the ways in which legislators, police officers, prosecutors, and judges are complicit in perpetrating grave injustices in the name of criminal justice. Among the pivotal claims of Husak's book--one surprising, in part, because it has received little serious defense by criminal theorists before is the claim that have right not to be punished, they have a right not to be subjected to intentional deprivation and censure through state action. (2) Such right is as weighty as any right we count as fundamental--as weighty, for example, as the constitutional rights of free speech, marriage, and privacy. In Husak's view, if legislators were to abide by seven general principles or (which he derives from the criminal law itself and by analogy from tenets of equal protection analysis within constitutional interpretation), (3) the criminal law would not overreach its proper scope and the right against punishment that all citizens possess would not be in peril. But because legislators have not constrained their lawmaking zeal by conscientious adherence to these principles, our criminal law is now riddled with mala prohibita offenses, (4) ancillary offenses, (5) overlapping offenses, (6) risk-creation offenses, (7) paternalistically-motivated offenses, (8) and just plain stupid offenses (9) that permit offenders to be sentenced to prison terms that are grossly disproportionate to the severity of their misdeeds (if they are guilty of moral misdeeds at all). At stake and at risk today, argues Husak, is our right against punishment--a right that implies that those who seek to sanction our conduct must satisfy demanding criteria of justification. (10) Upon applying the constraints on criminal legislation that he develops, Husak reaches substantive conclusions about the limits of the criminal law that are largely identical to those that would be reached by theorists with classic liberal, and even strong libertarian, sympathies. But what is surprising, given these conclusions, is that his ambitious and important book is not, as such, defense of liberty! It is not in the tradition of those who seek to derive checks on state power from theory of personal freedom. It does not indict paternalistic laws on the basis that persons have moral permissions to engage in the conduct such crimes prohibit; it does not rail against the proliferation of mala prohibita offenses on the basis that persons should lose liberty only when its use threatens the rights of others; it does not sort out what he calls ridiculous crimes by identifying prohibitions that target abuses of rights that are matters of right nonetheless. This is because Husak's concern is not, first and foremost, with the protection of an arena of action immune to state interference; rather, his concern is with the protection of the right against punishment. …