Criminalization and Decriminalization

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.