Criminalization and Decriminalization

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 entry 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?