Criminalization and Decriminalization

The question of the proper scope of the criminal law—what to punish, and why—is a continuing and difficult one. What new criminal prohibitions should be enacted, and which existing prohibitions should be expanded, narrowed, or eliminated? Since all criminal laws in the United States are created or subject to modification by statute, this question is primarily addressed to the legislature. However, when courts are called upon to interpret the scope of criminal statutes, they sometimes address similar questions, either as a matter of presumed legislative intent, or as a matter of public policy or (very rarely) constitutional interpretation. Police, prosecutors, and other law enforcement officials also sometimes face these issues, when deciding how to interpret and enforce existing criminal laws.

Costs and benefits of noncriminal measures.

Even if the benefits of criminalization exceed the costs, proponents of the cost-benefit approach point out that various civil, administrative, or regulatory measures may be more effective than criminal sanctions, less costly, or both. Examples of such noncriminal alternatives include the zoning or licensing of pornography and prostitution (Richards, 1979a); civil detoxification or civil commitment of public drunks (Kadish, 1967); medically supervised distribution of maintenance doses to heroin addicts (Morris and Hawkins, 1970); the use of civil fines for certain drug, traffic, and other minor violations; heavy taxation of unhealthy products; and general preventive measures such as product labeling and television advertising, seeking to discourage certain activities. Each such alternative must be subjected to a weighing of costs and benefits; whichever approach (criminalization or some alternative) produces the greatest excess of benefits over costs is the approach that should be followed, and if no approach produces a net benefit, then the ultimate alternative is to do nothing at all (Packer).

There are several reasons why noncriminal measures may be more effective or less costly than criminal sanctions. As discussed earlier, the former may not be subject to the strict procedural requirements applied to criminal statutes, and the personnel who administer noncriminal sanctions may be less highly trained and paid. An alternative solution to the problems of proving guilt in criminal cases would be to redefine crimes by reducing or eliminating the traditional criminal law requirement of culpable mental state (mens rea) or the requirement of personal guilt, thus imposing strict liability or vicarious liability for the acts or omissions of others. However, the latter alternatives create new problems of enforcement. To the extent that the redefined prohibited behavior is not generally viewed by witnesses, police, prosecutors, judges, and juries as morally blameworthy, criminal penalties will not be fully enforced (Kadish, 1963), whereas civil penalties for the same behaviors might be viewed as an appropriate compromise between condemning and condoning the behavior in question. Finally, noncriminal procedures may be better adapted to controlling and regulating violations of a continuing nature. An injunction proceeding, for example, uses past misconduct to formulate a rule of behavior specifically tailored to the situation, and then makes use of rather summary contempt proceedings each time that rule is violated in the future. Similarly, licensing and inspection regimes are better suited to detecting and enforcing limits on particularly problematic aspects of ongoing behaviors (for example, venereal disease among prostitutes). One of the key lessons of alcohol prohibition and its repeal is that it is not possible to effectively regulate behavior that is criminally prohibited (Morris and Hawkins, 1977).

On the other hand, noncriminal procedures are not always less costly or more effective than criminal penalties. Courts have occasionally applied criminal law procedural requirements to violations labeled as civil, because of the penalties authorized, the punitive intent of the legislature, or other indexes of punishment. In Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P. 2d 52 (1977), for example, the court invalidated an attempt to decriminalize first-offense drunk driving and dispense with right-to-counsel and proof-beyond-reasonable-doubt guarantees. Even the requirements of civil due process may make enforcement difficult and costly. For example, Heap v. Roulet, 23 Cal. 3d 219, 590 P. 2d 1 (1979), held that state constitutional due process required proof beyond a reasonable doubt, as well as a unanimous jury in civil conservatorship and commitment proceedings. Moreover, the abuses of discretion and other nonfinancial costs of criminal law enforcement are not necessarily avoided by the use of civil enforcement procedures: civil inspectors and regulators would seem just as likely to discriminate invidiously, take bribes, use intrusive means of detection, and the like. Indeed, to the extent that noncriminal alternatives are governed by lower standards of proof and procedure, and enforced by less highly trained personnel, we might expect the results to be less reliable and more subject to abuse, and we should also expect these less formal procedures to be invoked much more often. Past experience with informal measures such as the juvenile court and pretrial diversion suggests caution in abandoning the procedural protections of the criminal law (Allen; Morris).

In terms of the effectiveness of sanctions, there are undoubtedly certain types of behavior that cannot be adequately controlled without the use of the criminal law. Given its greater stigmatizing effect and more severe penalties, the criminal law is more likely, all things being equal, to prevent future offenses through deterrence (general and special), norm-reinforcement, or incapacitation. Criminal penalties also have greater retributive impact. Moreover, even where the behavior in question (for example, nonpayment of support) can generally be prevented and controlled without the use of the most severe penalties, there is often a need to retain the criminal law to deal with aggravated cases and to encourage cooperation with lesser forms of regulation or treatment (Morris and Hawkins, 1970), as well as for the occasional case where the criminal law's coercive detention and investigatory powers are needed. Although efforts can and should be made to define the scope of the criminal law as narrowly as possible in these areas, the traditional reliance on administrative discretion to tailor the penalties to the offense reflects, in part, the difficulty of specifying in advance precisely when criminal penalties and procedures are appropriate.

Priorities. The last and perhaps the most important step in the cost-benefit analysis is to consider whether, in a world of limited resources, the time and money spent attempting to control the behavior in question would be better spent elsewhere. A major criticism of attempts to prohibit such offenses as drunkenness, prostitution, and drug use is that these cases overload the police, courts, and correctional systems; thus these offenses distract those systems from their more important task of preventing serious crimes against persons and property and reduce the quality of justice in serious and nonserious cases alike. Implicit in this criticism is the assumption that other offenses are more socially harmful, easier to detect and prosecute, or subject to fewer collateral costs (police corruption and the like). The assessment of priorities thus involves yet another level of cost-benefit analysis, focusing on the marginal benefit that would be achieved by shifting resources from one type of offense to others. This analysis applies to resources spent on noncriminal as well as criminal sanctions. Finally, one must also consider whether it would be better to shift the resources completely away from law enforcement into other social uses, such as education or health care.

To summarize, the cost-benefit approach first examines the various costs and benefits of using the criminal law to control the behavior or social harm in question. If the costs outweigh the benefits, criminal prohibition is rejected. Even if the benefits of criminalization outweigh the costs, however, it is necessary to consider whether some noncriminal form of prohibition or regulation would produce not only a net benefit but a greater net benefit than criminalization. If neither criminalization nor a noncriminal alternative produces a net benefit, then the solution is to do nothing or leave the matter up to existing remedies and procedures—such as private civil damages actions—that exist for nonpunitive, nonregulatory reasons. If there is a net benefit, whichever form of prohibition yields the greatest net benefit must then be compared with the alternative uses of the resources involved, to see whether these resources would produce a still greater benefit if applied elsewhere (to control different behaviors, or for other public purposes).

Critique of the cost-benefit approach. In theory, the approach described above covers all relevant considerations and has the further advantage of relying, as much as possible, on matters that are subject to empirical verification. However, it seems unlikely that we will ever obtain reliable data on most of the relevant cost and benefit variables, and what data we have on each variable may not be commensurate with data on other variables. How does one compare, for example, the public safety benefits of extending drunk-driving prohibitions to lower alcohol concentrations, with the increased costs of enforcement—not only financial costs, but also lost freedom of action by drivers who would not have caused any public harm if left unregulated? Moreover, the cost-benefit calculus is too complex to provide much practical assistance in making specific criminalization decisions, nor does application of the calculus effectively limit such decisions—results are highly dependent upon the weight given to key variables, and the estimates used where (as is often the case) hard data is lacking. Finally, although practical problems of law enforcement are certainly very relevant considerations, they must not be allowed to overshadow the fundamental value choices that must be made: What purposes of prohibition are legitimate in a free, secular society? How much discretion should lawmakers have in defining prohibitions aimed at achieving concededly legitimate goals? How important are various harms (such as drug addiction) and values (such as the ideal of marital fidelity)? How important are the various unquantifiable costs of criminalization (such as loss of privacy or the right to use drugs or possess weapons for self-defense)?

In light of these complexities, it is tempting to fall back on more simplistic criteria: the law may (or must) enforce morality with few, if any, a priori limitations (Devlin); the law may only seek to prevent "harm to others" (Mill); the law may not violate the "human rights of the person" (Richards, 1979b); "victimless" crimes should be repealed (Schur); and so on. As this entry has attempted to demonstrate, however, the search for a single, simple criterion is illusory: both in matters of principle and of practicality, criminalization is almost always a question of degree, and seldom a matter of clear-cut alternatives.

The procedural (content-independent) approach. Given the inherent problems of criminalization arguments based on either principle or practicality, some writers have suggested that a more effective way to limit overbroad criminal laws would be to impose additional procedural limitations on criminalization decisions and criminal law enforcement. Donald Dripps proposes three such limits. First, the enactment of criminal prohibitions should require a two-thirds vote of the legislature, similar to the supermajority vote required to convict on impeachment, propose a constitutional amendment, or approve a treaty. Second, all criminal laws should have a built-in "sunset" provision, requiring reenactment (by two-thirds vote) every ten years. Third, courts should be given greater powers to require even-handed enforcement of criminal laws, thus increasing political pressures to limit their scope. Although Dripps admits that current equal protection doctrine is much narrower, he suggests that it might only be necessary to extend existing rules which, upon a showing of disparate impact on identifiable racial minorities, require the government to prove the absence of discriminatory intent.

Dripps's super-majority and sunset requirements are designed to prevent the enactment or continued enforcement of laws that are, or later become, strongly opposed by a substantial minority of citizens. These two requirements are thus consistent not only with the views of writers who argue for penal restraint based on political pluralism (Allen), but also with statements, summarized earlier, made by some of the most prominent advocates of "legislating morality." Thus, James Fitzjames Stephen conceded that criminal laws must be based on an "overwhelming" moral consensus; Patrick Devlin agreed that criminal laws must be based on moral judgments as to which a typical jury of twelve would be unanimous. And although Dripps does not go that far, something close to a unanimity requirement seems quite appropriate when the issue is whether to enact or continue the most severe penalties, such as the death penalty or life without parole ( just as we require the most stringent procedures in order to impose the death penalty in any given case). Presumably, such super-majority and sunset requirements would have to be embodied in a constitutional amendment. Although there is reason to doubt that very many legislatures would propose such an amendment, some states permit this to be done by popular referendum.

Other writers have proposed additional, less ambitious procedural incentives for narrow criminal lawmaking. One idea, somewhat parallel to Dripps's super-majority requirement, is to force legislatures to consider—or even include in current budgets—the full costs of proposed criminal legislation, including costs to be incurred beyond the current budget cycle (Wright). This mechanism is already being used in a number of states with sentencing guidelines commissions, and has helped those states control the growth of their prison populations (Frase, 1995). Another proposal, paralleling Dripps's sunset rule, is to create a permanent law revision committee or commission, "charged with the task of constant consideration of the fitness and adequacy" of criminal laws and sanctions (Morris and Hawkins, 1970, p. 27).