Criminalization and Decriminalization

In the absence of any simple criminalization criterion or effective procedural limits on criminalization decisions, how should legislators proceed? How can the mass of interrelated, often conflicting substantive criteria discussed above provide any concrete guidance in the choice of the criminal sanction? The list below attempts to synthesize the views of classical and modern writers on this subject, and poses a series of questions that hypothetical legislators (or their constituents) should ask themselves.

1. What is the specific social or individual harm that the law seeks to prevent or minimize, how important is it, and how likely is it to follow from the behavior sought to be prohibited? Although the law may on occasion seek to go beyond concrete "harm to others" to achieve paternalistic goals (such as the safeguarding of children) or to protect intangible interests (such as "decency" in public places), the dangers of abuse of individual rights increase the closer one comes to basing the law on public morality, intangible harms, or protection of the criminal "for his/her own sake." In particular, protection of an adult person's private morality, solely for that person's own good, would seldom if ever be justified in a secular society.
2. What are the major pros and cons of criminalization? Like the cost-benefit approach described earlier, this question addresses the practical difficulties of enforcing the law (because, for example, there are few civilian witnesses, or the prohibited behavior is highly desired by the participants), and also takes into account the likely success of criminal penalties in preventing both the prohibited acts and any more remote social harms sought to be prevented. Even if the practical pros and cons cannot be quantified and rigorously compared with each other, their mere enumeration and description helps to ensure that no relevant considerations are overlooked, and may signal the need for legislative caution (even in the absence of supermajority, sunset, or other procedural limitations). One factor that deserves particularly close scrutiny is the long-term financial cost of proposed criminal laws and penalties, particularly when most of the proposal's benefits are likely to be achieved in the short term.
3. Are any noncriminal methods of control more effective or less costly? Here again, the legislator must consider the major advantages and disadvantages of civil, administrative, or quasi-criminal forms of prohibition or regulation. Given the procedural complexities of the criminal law, its more severe stigma and sanctions, and the need to permit the agencies of the criminal law to concentrate their energies on the most serious social harms, noncriminal procedures are often preferable. In such cases, residual, "last resort" criminal penalties will sometimes be necessary, but they should be kept to a minimum, both to avoid problems of discretionary enforcement and to prevent interference with noncriminal procedures (for example, by discouraging prostitutes or drug users from obtaining medical assistance). There are some cases, of course, for which the criminal law and its procedures are peculiarly appropriate, as in dealing with violent or imminently harmful behavior. In other cases, only certain aspects of the criminal law may be needed (such as the arrest powers of the police), but not its severe stigma or sanctions. It may also be administratively convenient to give the police, prosecutors, or other criminal justice agencies responsibility for enforcing certain noncriminal prohibitions, for example, minor traffic offenses. Even where criminal sanctions are retained, it may be possible to reduce enforcement costs and procedural complexity by lowering authorized penalties (since, in general, less serious offenses merit less elaborate procedural safe-guards). Ultimately, the assessment of these practical advantages and disadvantages may not be possible without a willingness to experiment and evaluate carefully the actual results of switching to noncriminal modes of control.
4. Would the resources devoted to criminal or noncriminal prohibition produce greater benefit if applied to other undesirable behavior, or to public and private purposes unrelated to law enforcement?
5. What would happen if all prohibitions or regulatory efforts were discontinued? The alternative of doing nothing is almost always the least expensive, although it is politically the most difficult. Legislators and their constituents like to believe they are "doing something" about social problems, even if this is an illusion; moreover, the removal of all legal prohibitions may encourage the behavior in question, at least in the short run. As with the use of noncriminal alternatives, however, legislators must show a greater willingness to experiment with new approaches; this, after all, is one definition of leadership. Much guidance can be received from those jurisdictions (including those in other nations) that have pioneered deregulation. And of course, prohibition can be reinstated if the results of deregulation are unsatisfactory. The important point is simply that the existence of a criminal prohibition (or even a noncriminal one) must not create any presumption of its own validity. With or without formal "sunset" (required reenactment) provisions, the criminalization question is a continuing one that must be reexamined periodically, without preconditions, by the public and its elected officials. Similarly, new prohibitions should not be casually added without careful consideration of the lessons of past criminalization efforts