Abstract
Criminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This Article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy, but rather in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the criminal law should be seen as the extrema ratio, or option of the last resort. After laying out and defending the model, the Article deals with issues related to its implementation, advancing an argument for the constitutionalization of substantive criminal law. The Article argues that, on the basis of existing yet overlooked constitutional doctrine, criminal laws should be subject to at least strict scrutiny.
Highlights
WHAT TYPE OF CRIMINAL LAW?The prison population in America today, averaging at over 2.4 million inmates,[1] makes the United States the country with the highest incarceration rate in the world.[2]
There are today about 4,5004 federal laws carrying criminal penalties, with ‘‘40% of the thousands of federal criminal laws passed since the Civil War [having been] enacted after 1970.’’5 As Douglas Husak put it, ‘‘we have too much punishment and too many crimes in the United States today
Carrara aims to ground his model on solid first principles, which he sees as the only way to prevent the degeneration of the criminal law into an instrument of violent oppression and control
Summary
The prison population in America today, averaging at over 2.4 million inmates,[1] makes the United States the country with the highest incarceration rate in the world.[2]. On the costs of punishment, see, e.g., HUSAK, supra note 6, at 5–6; despised members,[10] we go back, full circle, to the first reason why substantive criminal law matters: it defines the system of government of which it is the political expression. Karl Popper once wrote, ‘‘There are no subject matters, no branches of knowledge—or rather, of inquiry: there are only problems, and the urge to solve them.’’22 If one looks beyond the fact that there are different countries, each with its own legal system, one can see that what remains are ‘‘problems, and the urge to solve them.’’ studying how different people in different times have dealt with similar issues can help shed light on the problem(s) at hand In this spirit, adopting a comparative and historical perspective, this Article will go back to the origins of modern criminal law and illustrate the core tenets of the classical model of liberal criminal law, developed by the Italian Classical School in the second half of the nineteenth century. One of the most influential liberal jurists throughout nineteenth-century Europe and beyond,[51] it is mostly through his work that the classical model was developed into a coherent system of criminal law
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