THE CRIMINAL LAW AS LAST RESORT DOUGLAS HUSAK* [Draft of November 8, 2002; not for citation; comments welcome] I hope that most philosophers of law agree that stringent conditions need to be satisfied before the state is justified in enacting criminal laws and punishing persons who violate them. In this paper, I will examine one possible such condition: the criminal law should be used only as a last resort. What does this principle mean, how should it be applied, and what reasons might we have to accept it? These are some of the issues I propose to address. In Part I, I will examine some preliminary matters and place the last resort principle in a larger theoretical context. In Part II, I will discuss a number of possible interpretations of this principle. In Part III, I will explore some reasons to believe this principle is plausible. In Part IV, I will endeavor to apply this principle to the difficult case of drug offenses. If my reasoning is sound, a theory of criminalization should probably include the (appropriately construed) last resort principle. But this conclusion will prove disappointing to those who hope to employ the principle to bring about fundamental change in the substantive criminal law. I will argue that the principle may not help to reverse the growth of the criminal law to any degree that could not be achieved more directly and less controversially by other principles that a theory of criminalization is generally thought to include. Unless we reject other parts of conventional wisdom about crime and punishment, the application of a last resort principle is unlikely to bring about the sweeping reforms that theorists might have anticipated. But at least some of this conventional wisdom can be challenged, and the last resort principle might have a very limited role to play in criminal law reform after all. 1 I: PRELIMINARIES Some philosophers of law have maintained, explicitly or implicitly, that the criminal law should be used only as a last resort.1 They have neglected, however, to provide a detailed analysis of what such a requirement involves.2 But a few preliminary matters are clear. The application of a last resort principle to the criminal law would be an exercise in what might be called idealized criminal theory. The project is aspirational in spirit, attempting to describe the criminal law we would prefer to have---the criminal law as it ought to be, rather than as it actually is. No one can seriously maintain that the criminal law incorporates a last resort principle at the present time.3 Nor can anyone reasonably claim that the common law provides much support for this principle.4 AngloAmerican jurisdictions create offenses so casually and routinely that the criminal law is likely to be employed as a first resort.5 If the last resort principle turns out to be sound, its primary use will be to enable commentators to critique existing law, providing ammunition to those who hope to retard the seemingly inexorable trends toward enacting too many criminal laws and punishing too many persons. *I would like to thank Antony Duff for many helpful comments on earlier drafts of this paper. 1 References are provided throughout this text. Most notably, the last resort principle is included among the ten principles of criminalization that comprise Nils Jareborg’s “defensive model” of the criminal law. He writes: “Punishment is society’s most intrusive and degrading sanction. Criminalization should accordingly be used only as a last resort or for the most reprehensible types of wrongdoing.” Nils Jareborg: “What Kind of Criminal Law Do We Want?” in Annika Snare, ed.: Beware of Punishment: On the Utility and Futility of Criminal Law (Oslo: Scandanavian Research Council for Criminology, 1995), p.17, 22. 2 Most comments are too cursory to be helpful in understanding how this principle should be interpreted or applied. A.P. Simester and G.R. Sullivan, for example, indicate that “criminal censures. . . should not be deployed merely as a tool for convenience, and where possible other forms of control ought to be used in their stead.” But when should we deem “other forms of control” to be “possible”? See their Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2000, p.11). 3 According to one influential commentator, “there has never been a thoroughgoing examination [in the United Kingdom] of . . . whether some form of non-criminal enforcement could be devised to deal effectively with [given kinds of offences].” Andrew Ashworth: Principles of Criminal Law (Oxford: Clarendon Press, 2d.ed., 1995), pp.50-51. The same observation applies to the United States. 4 Courts typically show enormous deference to legislatures in the creation of offenses. See, for example, Montana v. Egelhoff, 518 U.S. 37 (1996). 5 See Andrew Ashworth: “Is the Criminal Law a Lost Cause?” 116 Law Quarterly Review (2000), p.225. 2 Hopefully, legislators will heed these criticisms.6 By almost any measure, the United States today has enacted too many criminal laws and inflicts too much punishment. Commentators are reluctant to estimate the number of criminal offenses, but the figure is well into the hundreds of thousands.7 No living person can begin to describe more than a tiny fraction of the criminal laws that currently exist.8 And these numbers (whatever exactly they may be) are bound to rise, as criminal statutes are easily enacted but seldom repealed. Data about the extent of punishment are more reliable. At the present time, approximately 2.1 million Americans are incarcerated in jails and prisons, and 6.5 million are under the supervision of the criminal justice system---which includes probation and parole.9 These statistics are unprecedented in the history of democratic governance, and should shock our sense of justice.10 But no believes that these trends will be reversed in the near future. No existing political constituency (except for a handful of academics) favors a reduction in the size and scale of the criminal law. A solution to these problems requires (inter alia) a theory of criminalization---a set of conditions that must be satisfied before the state may enact a statute that subjects offenders to punishment.11 Should the last resort principle be included among these conditions? In my previous work, I have defended a theory that imposes severe 6 Structural features of our criminal justice system should make us pessimistic that improvements are on the horizon. See William Stuntz: “The Pathological Politics of Criminal Law,” 100 Michigan Law Review (2001), p.505. He concludes that “criminal law will probably get worse before it gets better.” Id., p.600. 7 In 1990, one commentator estimated that over 300,000 federal regulations could be enforced with criminal sanctions. See John C. Coffee Jr.: “Does ‘Unlawful’ Mean ‘Criminal’?: Reflections on the Disappearing Tort/Crime Distinction in American Law,” 71 Boston University Law Review (1991), p.193, 216. Perhaps 8,000 different criminal statutes exist in England. See Simester and Sullivan: Op.Cit. Note 2, p.44. Of course, the true extent of the criminal law is not only a function of the number of offenses, but also of their breadth. William Stuntz maintains that “anyone who studies contemporary state or federal codes is likely to be struck by their scope, by the sheer amount of conduct they render punishable. See Stuntz: Id., p.515. 8 A wealth of examples can be found in Ronald Gainer: “Federal Criminal Law Reform: Past and Future,” 2 Buffalo Criminal Law Review (1998), p.45. 9 U.S. Department of Justice, Bureau of Justice Statistics: Sourcebook of Criminal Justice Statistics (27th ed, 2000), Table 6.1. 10 For a popular and readable account, see Joel Dyer: The Perpetual Prisoner Machine (Boulder, Col.: Westview Press, 2000). 11 On question I do not pursue is whether the principles in a theory of criminalization provide as much reason to repeal existing offenses as to oppose the enactment of new offenses. As a matter of political strategy, the cases are clearly different. Proposals to change an existing law can galvanize support in its favor. Those who oppose gay marriages, for example, resist the official legitimization of what they are more willing to tolerate as operating outside the law. Law confers a “halo effect.” See Peter Shuck: The Limits of Law (Boulder: Westview Press, 2000), p.435. 3 constraints on the authority of the state to enact criminal offenses.12 I will briefly summarize this theory, although it is crucial to recognize that a last resort principle can stand on its own merits; one need not accept my views to believe that the principle should be included in a theory of criminalization. My account of criminalization builds on the deficiencies of its competitors.13 The theory actually in place under existing constitutional law in the United States is woefully inadequate.14 Most laws burden (that is, limit or restrict) liberties. When the constitutionality of these laws is challenged, courts respond by dividing liberties into two kinds: fundamental and non-fundamental. 15 The constitutionality of legislation that restricts a fundamental liberty is subjected to “strict scrutiny” and is evaluated by applying the onerous “compelling state interest” test. Virtually all criminal laws, however, limit non-fundamental liberties, and are assessed by applying the much less demanding “rational basis” test. Under this test, the challenged law will be upheld only if it is substantially related to a legitimate government purpose. The legitimate government purpose need not be the actual objective of the legislation--only its conceivable objective.16 Since only those laws that lack a conceivable legitimate purpose will fail this test, courts almost never find a law to be unconstitutional when nonfundamental liberties are restricted.17 As a result, the state needs only some conceivable legitimate purpose to enact the great majority of criminal laws on our books today. Douglas Husak: “Limitations on Criminalization and the General Part of Criminal Law,” in Stephen Shute and A.P. Simester, eds: Criminal Law Theory: Doctrines of the General Part (Oxford: Oxford University Press, 2002), p.13. See also Douglas Husak: “Guns and Drugs: Case Studies on the Limitations of the Criminal Sanction,” (forthcoming). 13 In what follows, I do not discuss the inadequacies of other competitors---utilitarian or economic theories, for example. See Douglas Husak: “Criminal Law Theory,” in William Edmundson and Martin Golding, eds: Blackwell’s Guide to the Philosophy of Law and Legal Theory (forthcoming, 2003). 14 It is doubtful that existing criminal law conforms to a theory at all. According to one commentator, “criminal law… adheres to no normative theory save that more is always better.” See Stuntz: Op.Cit. Note 6, p.508 n5. 15 Contemporary constitutional law now appears to divide liberties into three kinds. In cases in which an intermediate level of scrutiny is applied, the state must demonstrate a “substantial relationship” to an “important” governmental interest. See Clark v. Jeter, 486 U.S. 456, 461 (1988). For a more detailed elaboration, see Erwin Chemerinsky: Constitutional Law: Principles and Policies (New York: Aspen, 1997), pp.414-417; 533-545. 16 See Federal Communications Commission v. Beach Communication, 113 S.Ct. 2096 (1993). 17 Some jurists have protested that judicial review under this test is “tantamount to no review at all.” Id., p.2106 (Stevens, J., concurring). Nonetheless, the rational basis test creates some limitations on legislation. See, for example, Romer v. Evans, 116 S.Ct. 1620 (1996), in which the Court held that mere animus toward homosexuals does not provide a rational basis for discriminating against them. 12 4 Persons who break these laws can be punished simply because the state has a rational basis to do so. On the other hand, the state needs an extraordinary rationale to punish persons who exercise fundamental liberties. The Constitution effectively precludes the state from criminalizing travel, prayer, or political speech, for example. Outside the narrow range of fundamental liberties, however, it is only a slight exaggeration to say that the state can decide to criminalize almost anything. A hypothetical case may help to demonstrate the extent of state power in the criminal arena---and the potential injustice of this power.18 Suppose that legislators become alarmed by the fact that too many persons are unhealthy and overweight. Initially, they decide to facilitate the efforts of consumers to eat a better diet by enacting legislation requiring distributors of fast foods to display nutritional information on their packaging. If the constitutionality of this law were challenged, it would seem appropriate for courts to defer to legislators by invoking the rational basis test. Suppose, however, that legislators came to believe (as is probably the case) that better information would have little impact on the problem of obesity. Imagine that they decided to prohibit---on pain of criminal liability---the consumption of designated unhealthy foods. Suppose that sausage were placed on this list. Once again, the rational basis test would be applied to assess the constitutionality of this law. This hypothetical crime is almost certainly constitutional, since the liberty to eat sausage does not seem to qualify as fundamental. The state has an uncontested interest in protecting health, and it is at least conceivable that proscribing the consumption of sausage would bear a substantial relation to this interest. Admittedly, many foods are more detrimental to health than sausage, and not all sausages are especially detrimental to health. But the fact that a criminal law is underinclusive and/or overinclusive is not regarded as a constitutional impediment under the rational basis test. 19 In other words, a statute may proscribe some instances of conduct that do not contribute to the statutory objective, and need not proscribe each instance of conduct that does contribute to the statutory objective. 18 I need not struggle to imagine a case of potential injustice to illustrate my point. Any number of real examples could be given, although each is probably more controversial than my hypothetical. 19 For a seminal discussion of overinclusive and underinclusive rules, see Frederick Schauer: Playing by the Rules (Oxford: Clarendon Press, 1991). 5 What is remarkable about the foregoing approach is its complete indifference to the distinction between criminal and noncriminal legislation. It is one thing for noncriminal laws that burden non-fundamental liberties to be evaluated by the rational basis test. But it is quite another when criminal legislation is assessed by that same standard. The criminal law is different---importantly dissimilar from other kinds of law. The extraordinary procedural protections surrounding the criminal sanction are sensible only on the assumption that the criminal law is unlike other bodies of law.20 What is so distinctive about the criminal law? Later I will argue that the criminal law is different in that it subjects persons to state punishment. Punishments violate rights in the absence of a compelling justification. Contemporary constitutional law provides an inadequate theory of criminalization because it fails to provide a justification sufficient to override these valuable rights. The deficiencies in this theory point the way toward a better account of criminalization. Why not require the state to have a compelling interest for each criminal law it enacts?21 The standards applicable to infringements of fundamental rights (like speech) should be invoked whenever persons become subject to punishment.22 This theory requires the law in question to be necessary to achieve a compelling government purpose. In other words, the government’s purpose must be essential, and the law must be the least restrictive means to attain that purpose. To qualify as the least restrictive means, the law must be narrowly tailored to serve the compelling state interest. The requirement of narrow tailoring has two dimensions. First, criminal laws should not be overinclusive, proscribing instances of conduct beyond those that serve the compelling See William Stuntz: “Substance, Process, and the Civil-Criminal Line,” 7 Journal of Contemporary Legal Issues (1996), p.1. 21 A similar view is defended by Sherry Colb: “Freedom from Incarceration: Why Is This Right Different from All Other Rights?” 69 New York University Law Review (1994), p.781. 22 I do not insist that judges should be given the power to declare a criminal statute unconstitutional if it fails the justificatory test I describe. The judiciary almost certainly lacks the competence to apply my theory of criminalization, which I address primarily to legislators. Hopefully, some legislators will be receptive. Lord Williams of Mostyn (then Minister of State at the Home Office) has stated that criminal offenses “should be created only when absolutely necessary;” a reason not to create a new offense is that “the mischief could be dealt with under existing legislation or by using other remedies.” See Ashworth: Op.Cit. Note 3, p.229. 20 6 state interest.23 Next, criminal laws should not be underinclusive, and must apply equally to each instance of conduct the state has the same compelling interest to proscribe.24 The state must treat us as equals in protecting our interest not to be punished; it should not punish some while sparing others if it has the same compelling reason to punish both. Of course, this theory cannot be implemented without criteria to decide which state interests are compelling; attempts to identify these interests are bound to generate enormous dispute.25 Moreover, since the law must be necessary to achieve the compelling government purpose, the state must show that its objective would be more difficult to attain without resorting to punishment. This latter requirement, it would seem, expresses the last resort principle. A criminal statute cannot be necessary to accomplish a purpose if other means could do so more easily. Although the foregoing theory of criminalization seemingly includes a last resort principle, our decision to adopt this principle depends mostly on how it should be interpreted and applied. One would expect the implementation of this principle to require a laborious, case-by-case determination of the relative advantages and disadvantages of criminal and noncriminal approaches to given problems. A few matters, however, seem capable of resolution a priori. For example, can our current practice of creating a series of lesser-included offenses survive the last resort principle?26 Suppose that a defendant cannot possibly violate statute X without also violating statute Y; he commits Y whenever he commits X. Under these circumstances, how can offense X be necessary to achieve a compelling government purpose? As we have seen, the last resort principle is satisfied when the statutory objective would be harder to attain without punishing the conduct proscribed by X. But this conduct is already punished; no one would escape 23 For example, a law to prevent minors from accessing obscene depictions on the Internet is overinclusive if it burdens the First Amendment rights of adults---even though the state may have a compelling interest in protecting children from the evils of pornography. See Reno v. A.C.L.U., 521 U.S. 844 (1997). 24 For example, an ordinance aimed at prohibiting the ritualistic animal sacrifice of Santerians is underinclusive if it is designed to prevent cruelty to animals, since other conduct that is equally cruel to animals is not proscribed. See Church of the Lukumi Babalu Aye, 508 U.S. 537, 543-544 (1993). 25 “As numerous commentators have pointed out, the Court’s analysis of ‘government interests’, and in particular what constitutes a compelling or important interest, is almost entirely undeveloped.” Bhagwat Ashutosh: “Purpose Scrutiny in Constitutional Analysis,” 85 California Law Review (1997), p. 297, 308. 26 A single instance of conduct can violate eight or ten statutes simultaneously. For a discussion of this phenomenon, see Stuntz: Op.Cit. Note 6. 7 punishment if offense X did not exist. As long as Y exists, how can X be said to be necessary? Of course, conduct X could still be punished more severely than conduct Y, even if X and Y no longer exist as distinct crimes. Increased punishments for the more serious conduct could be imposed through sentencing provisions, rather than by convicting persons of separate offenses.27 Little, then, would change in actual criminal practice--except that defendants could no longer be charged and convicted of both X and Y. At the present time, lesser-included offenses give prosecutors enormous leverage in securing guilty pleas from defendants. Prosecutors often agree to drop one charge in exchange for a plea of guilty to the charge that remains. I am not unmindful of the advantages that such provisions secure. But it is hard to see how these advantages could be preserved within a theory of criminalization that satisfies the exacting conditions I have described. 28 Apart from these kinds of situations, however, an empirical task of Herculean proportions would be needed to implement a last resort principle in the criminal law. My central project is to decide whether such a project is worth undertaking, and whether it offers a realistic hope of reversing our tendency to criminalize too much and to punish too many. Before addressing this topic directly, I want to make four additional preliminary observations about the last resort principle itself. First, how should this principle be conceptualized within a theory of criminalization? A comprehensive theory will include an exhaustive list of positive and negative reasons---reasons in favor of enacting criminal offenses, and reasons against doing so. Most theorists have focused on the former considerations---reasons to criminalize. Joel Feinberg’s seminal work on the moral limits of the criminal law is the most familiar example. His several liberty-limiting principles each begin: “It is always a 27 If the degree of punishment for X were greater than the statutory minimum for Y, the state would be required to prove beyond a reasonable doubt the factor that enhanced the sentence---just as though X continued to exist as a distinct offense. See Apprendi v. N.J., 530 U.S. 466 (2000); Harris v. U.S., 122 S.Ct. 2406 (2002). 28 Although lesser-included offenses might not survive the implementation of a last resort principle, much the same advantages to prosecutors could be achieved by creating overlapping offenses. Offenses X and Y overlap when most persons who commit X also violate Y, even though it is possible to commit one without also committing the other. No a priori argument can show that overlapping offenses cannot survive the last resort principle. 8 good reason in support of a proposed prohibition that…”29 Of course, a criminal prohibition may not be justified even though it satisfies a liberty-limiting principle that Feinberg endorses.30 He claims that the decision not to criminalize conduct that satisfies a liberty-limiting principle should be “determined by such practical matters as the use of available resources, court facilities, police time, enforcement costs, effects on individual expectations, and the like.”31 These latter “practical matters”---included among the reasons not to criminalize---receive far less attention from Feinberg, presumably because they are less interesting to a philosopher of law. Questions about police resources, for example, while unquestionably important to criminologists, do not seem to raise concerns that are central to Feinberg’s project to probe the moral limits of the criminal law. Although no one should insist on too sharp a dichotomy between positive and negative reasons in a theory of criminalization, the last resort principle should probably be categorized among the latter.32 That is, we should probably test the last resort principle by assuming that a given type of conduct satisfies whatever positive conditions are needed to justify the imposition of criminal sanctions. The conduct in question, for example, should be assumed to be wrongful, cause harm, involve culpability, and the like. Even when each of these positive conditions obtains, however, there still may be persuasive reasons not to criminalize. The fact that the criminal law is not the last resort is the reason not to criminalize I will explore here.33 29 Joel Feinberg: Harm to Others: The Moral Limits of the Criminal Law (New York: Oxford University Press, 1984), pp.26-27. Mysteriously, two of Feinberg’s liberty-limiting principles replace the word “good” with “morally relevant,” but this change seems unimportant. 30 Ultimately, Feinberg’s preferred “liberal theory of law” endorses only the harm and offense principles. Id., pp.14-15. 31 Joel Feinberg: “Harm to Others---A Rejoinder,” 5 Criminal Justice Ethics (1986), p.16, 17. 32 Because I construe the last resort principle as a reason not to criminalize, I do not consider whether there are any contexts in which its application might actually expand the reach of the criminal sanction. That is, I do not discuss whether there is any harmful conduct not criminalized at the present time that might satisfy the last resort principle. 33 Feinberg himself, however, appears to treat the last resort principle as a positive reason to criminalize. Curiously, he includes his version of the last resort principle in his formulation of the harm principle. His canonical statement of the harm principle is as follows: “It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor and there is probably no other means that is equally effective at no greater cost to other values.” (Op.Cit. Note 29, p.26, emphasis in original). As so formulated, the harm principle contains two distinct conjuncts. The first specifies (roughly) that we have a good reason to enact a criminal law that prevents harm; the second specifies that we have a good reason to enact a criminal law if no other means to 9 Next, I will assume that we are able to draw any crucial distinction on which the application of the last resort principle depends. The principle invites us to suppose that the state has a number of possible means (to which it might “resort”) to attain its ends. Some of these means involve the criminal sanction, and others do not. The last resort principle offers guidance about which means to choose. Therefore, interpretations of the last resort principle presuppose an ability to distinguish criminal from noncriminal approaches to given problems. This distinction can be very difficult to draw.34 A fine that is disproportionate to the injury inflicted, I am sure, is an alternative to incarceration as a mode of punishment; it is not an alternative to punishment. The last resort principle, as I construe it here, offers no advice about what kind of punishment to prefer.35 It tells us that punishment (of any kind) should not be imposed when nonpunitive alternatives are better in attaining the objective of the legislature. As we will see, however, the crucial contrast---between alternative modes of punishment and alternatives to punishment---can be elusive.36 The concept of punishment, like most concepts in ordinary language, is vague and allows for borderline cases. Perhaps we must eventually prevent harm are equally effective. The second of these conjuncts expresses (one version of) the last resort principle. I say that the inclusion of the last resort principle in the harm principle is curious, since Feinberg is clear that the latter principle provides only necessary, but not sufficient criteria for the justifiability of penal legislation. A criminal law may be unjustified notwithstanding the fact that it prevents harm if it fails some other constraint---if the harm it prevents is minimal, for example. Why not take the same tact with the last resort principle? Why not say, in other words, that a law that satisfies the harm principle is unjustified if other means to prevent the harm are equally effective? Instead, Feinberg’s approach ensures that any law that fails the last resort principle will fail the harm principle as well, rather than some other principle that supplements it. Thus a law can prevent harm but still fail the harm principle. This result is bound to be confusing; anyone who contended that a given law did not meet the test of the harm principle would surely be understood to be claiming that the law did not prevent harm, not that it did prevent harm but failed to satisfy some additional conjunct in the harm principle. Feinberg’s formulation of the harm principle should have ended before the controversial conjunction, allowing him to treat the last resort principle as a separate reason not to criminalize. In any event, the last resort conjunct in the harm principle plays surprisingly little role in Feinberg’s subsequent 1200 page discourse on the moral limits of the criminal law---no more of a role than the several practical reasons not to criminalize I listed above. Many possible criminal offenses are disqualified because they fail to prevent harm, but few are ruled out because they do not satisfy the last resort conjunct of the harm principle. 34 The Supreme Court has struggled with this distinction in the context of trying to decide when sanctions are punitive. One commentator describes the Court’s approach as “an incoherent muddle.” It is “so inconsistent that it borders on the unintelligible.” Wayne Logan: “The Ex Post Facto Clause and the Jurisprudence of Punishment,” 35 American Criminal Law Review (1998), p.1261, 1268 and 1280. 35 A closely related principle that is frequently defended does address the issue of what mode of punishment to prefer. Incarceration is frequently said to be the last resort among kinds of punishments. 36 Despite this difficulty, I take the fact that offenders are subject to state punishment to be a defining mark of the criminal law. If a law does not subject offenders to punishment, it simply is not a criminal law. I will not endeavor to defend this controversial claim here. 10 resort to stipulation in deciding whether some novel way to deal with a social problem amounts to punishment. In such cases, it will be hard to decide whether the criminal law is employed as a last resort. Moreover, I will assume that the last resort principle is a part of a theory of criminalization, and not a component in a theory of sentencing. The difference, as I understand it, is crucial. We might believe that the decision to punish a particular defendant should be a function of his peculiar circumstances. Perhaps we have reason to think that we can attain our goals more effectively by cautioning him. Or perhaps we believe that he will disregard our warnings, so punishment is needed to achieve our objectives. Punishment, it might seem, should only be inflicted on given offenders as a last resort. This way of understanding the last resort principle has some plausibility, and might help to alleviate the problem of imposing too much punishment. It would not, however, address the problem of enacting too many criminal laws, and is not the interpretation I adopt here. Punishment is an option for the state only when conduct has been criminalized. I propose to construe the last resort principle as applying to this prior decision---whether to make punishment an option. It does not render assistance to sentencing authorities about whether to punish conduct that has already been criminalized, but offers guidance to legislators about whether conduct should be criminalized in the first place. Finally and perhaps most importantly, we should not take the last resort principle too literally. We cannot really believe that the criminal law should be a last resort in addressing social problems in the same sense that we might believe that war, for example, should be a last resort in resolving international problems. I have contended that we suffer from rampant overcriminalization. But we should not pretend that this is the worst affliction that can befall a state; we could come to utilize modes of social control that would make the criminal law seem benign by comparison.37 Such means of social 37 In this respect, the debate resembles that surrounding capital punishment. Abolitionists routinely presuppose that even more draconian forms of punishment, such as torture, will not be implemented. The most severe punishments---like the most coercive forms of social control---should always arouse controversy among scholars and reformers. See Dirk van Zyl Smit: Taking Life Imprisonment Seriously (Dordrecht: Kluwer Law International, 2002). 11 control are a staple of science fiction.38 Even when they are feasible, some devices never occur to us, and pass beneath our radar screen. Imagine a system of social control in which persons were permitted to smoke cigarettes if they agreed to accept a stigmatizing brand on their foreheads.39 Such options should probably not be conceptualized as a rival form of the criminal law; they seem to involve alternatives to punishment altogether.40 If we are assessing the justifiability of a possible criminal prohibition against smoking and incorporate the last resort principle into our theory of criminalization, it is doubtful that we would need to include such alternatives in our deliberations. Any inclination we may have to embrace a last resort principle for the criminal law derives from our assurance that such options are not serious candidates for implementation.41 With these four preliminary observations out of the way, the fact remains that no theorist has explicated the last resort principle in any detail. I have suggested that it provides a reason not to criminalize even when the positive conditions in a theory of criminalization are met. Beyond this observation, what does the principle mean? How should it be applied? Under what circumstances, if any, should we accept it? Does it create any serious constraints on the imposition of the criminal sanction? I now turn to these matters. II: INTERPRETATIONS In this Part I will attempt to interpret the last resort principle. I will suppose that an interpretation casts a principle in its best light; it helps to explain why theorists might be 38 See, for example, Philip K. Dick: Minority Report (New York: Pantheon, 1956), recently made into a movie by Stephen Spielberg. In this futuristic world, murders are prevented before they occur. Such a system would seem to represent an alternative to criminal justice and punishment, rather than a different mode of it---although it is hard to be sure. 39 Feinberg provides similar examples in which readers are invited to decide whether alternatives to the criminal law might be more coercive. Contrast a criminal prohibition against cigarette smoking with a law that permitted smoking on the condition that the smoker allow himself to be used in a medical experiment or agree to spend a year in the army for each carton consumed. See Op.Cit. Note 29, p.24. 40 Again, however, it is hard to be sure. See text accompanying Notes 34-36. 41 Some historical precedents are expressly forbidden. Article I, Section 9, Paragraph 3 of our Constitution precludes Bills of Attainder, for example. 12 attracted to it.42 But despite my efforts to construe the last resort principle as plausible, I will have difficulty finding an interpretation that is likely to be helpful in retarding the trend toward overcriminalization I described above. Any such interpretation will have to reject other parts of conventional wisdom about crime and punishment that are more widely accepted than the last resort principle itself. A superficial interpretation of the last resort principle might be as follows: If noncriminal alternatives are preferable to the criminal law in attaining the legislative objective, the former should be employed. I describe this interpretation as superficial because, as so construed, the principle says nothing distinctive about the criminal law, and seems equally applicable to any purposeful endeavor. In this respect, the principle is comparable to claims like “the criminal law should not be used if it is not effective [in controlling conduct],”43 or “punishment ought not to be inflicted [where it] would produce more evil than the offence would.”44 Presumably, these kinds of principles apply with equal force to all goal-directed activities; it is hard to see why any means should be employed that is known to be inferior to an alternative, ineffective, or counterproductive.45 These principles appear to be little more than requirements of practical reasoning. If a carpenter wants to drive a nail, why would he knowingly adopt a strategy that will not succeed, would do more harm than good, or is worse than a means he rejects? I assume that the last resort principle is not simply a requirement of practical reasoning.46 A sensible interpretation of this principle must explain why it has a special (although not necessarily unique) application to the criminal law. This difficulty can be overcome by construing the last resort principle as a tie-breaker. According to this simple modification, the principle states that a criminal law should not be enacted when This view of interpretation is defended by Ronald Dworkin: Law’s Empire (Cambridge: Belknap Press, 1986). 43 Ashworth: Op.Cit. Note 3, pp.33-34. 44 Jeremy Bentham: An Introduction to the Principles of Morals and Legislation (1823 ed.), Chapter XIII, Secs. 1 and 4. 45 As we will see, much depends on what one means by “effective.” Since the criminal law almost certainly has a censuring function, a statute may be ineffective in preventing conduct but still be effective in censuring. See Ashworth: Op.Cit. Note 3, p.34. 46 I do not mean to suggest that a last resort principle would have no value if construed as a requirement of practical reasoning. The principle might still be useful in reminding us to guard against our tendency to take convenient short-cuts. 42 13 other means are equally effective at attaining the legislative objective. Even when all other things are equal, alternatives to the criminal law should be preferred. Other difficulties of interpretation and application are not so easily resolved. We cannot begin to implement the last resort principle (as so construed) without identifying the objective of penal legislation. Unless we understand the nature of this objective, we are in no position to decide whether given alternatives are better or worse at attaining it. This issue plunges us directly into some of the deepest quagmires of criminal theory. All philosophers agree that the criminal law has an objective, but disagree radically about what that objective is. Suppose we believe that the sole objective of the criminal law is to prevent (or, in Feinberg’s words, eliminate or reduce) whatever conduct has been criminalized.47 This belief gives rise to what I will call the preventive interpretation of the last resort principle: the criminal law should be used only as a last resort to prevent given kinds of conduct. If noncriminal means to prevent the conduct in question succeed as well or better, the criminal sanction should not be employed. Of course, we know that the criminal law cannot really eliminate; some criminal conduct will persist, whatever the law may say. In light of this realization, we may be tempted to endorse the following two premises. First, there is an acceptable level of criminality for any given offense. Second, the objective of the criminal law is to reduce the incidence of the conduct in question to whatever level is deemed acceptable. If these premises were true, we could try to ascertain whether we could produce acceptable levels of given kinds of conduct without utilizing the criminal sanction. If we discovered that we could do so, the preventive interpretation of the last resort principle would entail that no criminal offense should be enacted. Jonathan Schonsheck appears to subscribe to these two premises, and construes the last resort principle accordingly. In attempting to limit the scope and reach of the criminal sanction, he asks: “Is there some technique of social control which will be successful in reducing the incidence of that action to an acceptable rate---but which is 47 This supposition cannot be correct, for reasons I explore in Part IV infra. When offenses are inchoate, the objective of the criminal law cannot be to prevent whatever conduct has been criminalized, but to prevent some further (consummate) harm or evil. Even when offenses are not inchoate, the conduct proscribed may not be the conduct to be prevented because of what I call substitution effects. 14 less intrusive, less coercive than a criminal statute?”48 If the answer is affirmative, Schonsheck insists that the alternative technique should be used, and the criminal law should not. Unfortunately, both of the foregoing premises should be rejected---and Schonsheck’s interpretation of the last resort principle along with them. First, there is no “acceptable” rate of criminality in any sense that would be useful to a criminal theorist. Not surprisingly, Schonsheck offers no guidance as to how we might decide whether a given rate of criminality is acceptable. Even though we can be confident of failure, the state should strive to eliminate core crimes like murder and theft---to reduce their incidence to zero.49 In fact, a number of commentators have appealed to this aspiration in attempts to draw the elusive boundary between the criminal and civil law. According to this train of thought, the civil law, unlike the criminal law, should aim only for optimal rather than for total deterrence. In other words, the civil law should price, while the criminal law should prohibit.50 To be sure, economists speak meaningfully of an optimal rate of crime in at least two contexts: when referring to ideal expenditures on law enforcement, or when trying to identify appropriate levels of punishments. Consider the first of these contexts. No one recommends that a society should invest all of its resources in crime prevention. At some point, the marginal cost of deterring one additional theft is greater than the occurrence of the undeterred theft. When this point is reached, it is inefficient to allocate further resources to theft prevention. It does not follow, however, that the thefts not prevented are somehow “acceptable.” They remain unacceptable because we would seek to prevent them were greater resources to become available. Economists also speak of an optimal rate of crime when deciding how severely given offenses should be punished. For at least two reasons, the state must be careful not to set punishments too high. First, the state should not depart from a principle of rank ordering in implementing a principle of 48 Jonathan Schonsheck: On Criminalization (Dordrecht: Kluwer Academic Publishers, 1994), p.68. Unless these offenses are justified. Justifications, unlike excuses, apply when conduct is permissible. Clearly, the state should not strive to eliminate permissible conduct, such as intentional killings of human beings (i.e., murders) that are committed in self-defense. 50 See John Coffee: “Paradigms Lost: The Blurring of the Criminal and Civil Law Models---And What Can Be Done About It,” 101 Yale Law Journal (1992), p.1875, 1882-1887. See also Robert Cooter: “Prices and Sanctions,” 84 Columbia Law Review (1984), p.1523. 49 15 proportionality.51 More serious offenses should not be punished with greater severity than less serious offenses, even if deviations from this principle proved effective in preventing crime. Next, punishments must not be so severe that they deter people from engaging in productive and beneficial activities.52 If punishments for the offense of careless driving were exorbitantly high, risk-averse people might be deterred from driving at all, since they could only guarantee that they would not drive carelessly only by abstaining from driving altogether.53 But the existence of these two contexts does not presuppose that there is an acceptable level of crime in a society. Since no rapes should be tolerated, for example, we cannot decide whether noncriminal means of reducing rape would produce an acceptable rate. Therefore, the second premise in the above argument should be rejected as well. But we need not believe that there is an acceptable level of crime to salvage the preventive interpretation of the last resort principle. All we need to believe is that the function of the criminal law is to reduce the incidence of the conduct to be criminalized. The criminal law is only one of many possible devices to prevent a state of affairs from obtaining, and it is always a contingent matter whether a noncriminal alternative would succeed as well or better. As long as we construe the purpose of the criminal law wholly in instrumentalist terms, we must remain open to the possibility that some other instrument will attain this purpose more effectively. This interpretation of the last resort principle seems plausible. As Neil Komesar points out, evaluating one means of social control without simultaneously evaluating its competitors distorts policy analysis in the same way that ignoring opportunity costs distorts economic analysis.54 “Evaluation” is typically explicated in preventive terms, and several competitive means of prevention are available. Some of these means involve legal regulation, and some do not; of those that do, some of these means involve See Andrew von Hirsch: “Proportionality in the Philosophy of Punishment,” in Michael Tonry, ed: Crime and Justice: A Review of Research (Chcicago: University of Chicago Press, 1992), p.55. 52 See Richard Posner: “An Economic Theory of the Criminal Law,” 85 Columbia Law Review (1985), p.1193, 1206. 53 This point also militates against strict liability. One commentator’s sole use of the last resort principle is to object to impositions of strict liability. See Michael Bayles: Principles of Legislation (Dordrecht: D.Reidel Pub. Co., 1987), pp.297-298. 54 Neil K. Komesar: Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy, (Chicago: University of Chicago Press, 1994), p.50. 51 16 criminalization, and others do not. Feinberg includes “withholding licenses, withdrawaing professional certification, refusing to enforce certain kinds of contracts, job dismissals by public agencies, suspending governmental subsidies or financial support, child custody discontinuances, and so on.”55 Michael Bayles distinguishes six distinct legal techniques in addition to penal sanctions. He describes grievance-remedial, administrative-regulatory, public benefit-conferral, public burden-imposing, privatearranging, and compulsory treatment strategies.56 Peter Schuck includes informal social norms and markets as the main non-legal means to “organize human effort, advance wellbeing, and maintain social order.”57 Andrew Ashworth lists “morality, social convention, and peer pressure” as the modes of social control that rival law.58 And, as Herbert Packer reminds us, we always have the option of doing nothing.59 How should we choose which mode of social control to employ? If any combination of these competitors works as well or better than the criminal law in reducing the incidence of the conduct in question, the preventive interpretation of the last resort principle entails that punitive sanctions should not be employed. The preventive interpretation suggests that we compare two jurisdictions that differ in only one respect: the first includes an offense proscribing a given kind of conduct, whereas the second employs noncriminal means of prevention. Since real experiments of this sort are difficult or impossible to perform, philosophers must rely on thoughtexperiments. In the relevant thought-experiment, we compare two possible worlds that only differ in that the first contains an offense to reduce the occurrence of a given kind of conduct, while the second relies solely on alternative strategies. We then identify the possible world in which less of the conduct occurs. If fewer (or as many) instances of the type of conduct occur in the latter world, the criminal sanction would not be justified. But this interpretation is problematic. The first problem I will cite is perhaps the least interesting philosophically, but among the most difficult to solve in practice. How can we hope to identify the possible world in which less of the conduct to be criminalized occurs? How confident must we be that an alternative to the criminal law would be more 55 56 57 58 Feinberg: Op.Cit. Note 29, p.22. Bayles: Op.Cit. Note 53, pp.66-68. Shuck: Op.Cit. Note 11, p.434. Ashworth: Op.Cit. Note 3, p.33. 17 effective as a preventive?60 We might be tempted to say, with Peter Alldridge, that the last resort principle requires that the criminal law may be used only “when all other methods of the legal regulation of the phenomenon in question have been canvassed and found wanting.”61 But this statement cannot be taken literally; the last resort principle is not intended to produce paralysis. Alternative strategies are almost never exhausted. In most cases, we can at least imagine rival devices that might succeed but have not been attempted. In addition, we can always provide some reason to believe that we did not try hard enough when a given alternative was deemed to have failed. In short, unless we know where the burden of proof lies in judging success or failure, and how that burden can be discharged, we cannot begin to implement the last resort principle. Even if this difficulty can be overcome, two additional problems with the preventive interpretation are seemingly insurmountable. First, we should challenge the assumption that reducing the incidence of given types of conduct is the sole objective of the criminal law. Obviously, the preventive interpretation of the last resort principle is jeopardized if the criminal law has central functions other than reducing crime. Many, and probably most theorists assign a different function to the criminal law. Consider, for example, the extreme version of retributivism forcefully defended by Michael Moore. According to Moore, “the only function of the criminal law is the achievement of retributive justice.”62 Crime prevention is utterly irrelevant on this model, since retribution “is the intrinsic good that is the function of Anglo-American criminal law.”63 Moore argues that “the achievement of retributive justice gives a legislature good reason to criminalize all immoral behavior, for this is the only way the good of retributive justice can be achieved.”64 Since criminalization is the only way to achieve retributive justice, 59 Herbert Packer: The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), p.258. It is notable that commentators continue to disagree about the effectiveness of the (generally discredited) attempt in the United States to prohibit alcohol. See, for example, Mark H. Moore: “Actually, Prohibition Was A Success,” in Irwin M. Berent and Rod L. Evans, eds: Drug Legalization: For and Against (La Salle, Ill.: Open Court Pub. Co., 1992), p.95. 61 Peter Alldridge: “The Crime of Money Laundering,” 5 Buffalo Criminal Law Review (2001), p.279, 316. It is not clear, however, that Alldridge himself endorses this interpretation of the last resort principle; he attributes it to “other liberal theorists.” Id., p.316. 62 Michael Moore: Placing Blame: A Theory of Criminal Law (Oxford: Clarendon Press, 1997), p.28. 63 Id., p.29 (emphasis in original). 64 Id., p.661. 60 18 Moore has no need to invoke a last resort principle.65 For those whose conduct is immoral---culpable wrongdoers---the criminal law is the only game in town; no alternative to punishment can possibly do as well or better.66 The criminal law is not the last resort; it is the only resort. Without going as far as Moore in contending that the prevention of given kinds of conduct is wholly immaterial to the justification of criminal legislation and the rationale of punishment, we should agree that the criminal law has important objectives other than prevention. Feinberg has persuasively argued that punishment has an expressive function. More specifically, punishment “is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority…or of those ‘in whose name’ the punishment is inflicted.”67 To be sure, theorists have challenged Feinberg’s views about exactly what it is that punishment expresses, and how the expressive and hard treatment components cohere in a single rationale of punishment.68 Hopefully, these difficult issues need not be resolved. For present purposes, we need only make the tentative assumption that an adequate account of the nature and justification of punishment must include both components.69 Thus I will suppose that a normative defense of punishment must defend our practice of subjecting offenders to hard treatment as well as to censure.70 In what 65 Of course, Moore allows that such disadvantages as enforcement costs and invasions of privacy count against enacting a criminal law. The attainment of retributive justice is not the only good the state should pursue. See Id., pp.661-664. 66 Among other difficulties with Moore’s account, I doubt that a plausible formulation of a principle of retributive justice demands the punishment of culpable wrongdoers. It requires hardship, loss, or other unpleasant consequences, and it is an open question how this should be achieved. See Douglas Husak: “Retribution in Criminal Theory,” 37 San Diego Law Review (2000), p.959. 67 Joel Feinberg: “The Expressive Function of Punishment,” in his Doing and Deserving (Princeton: Princeton University Press, 1970), p.95, 98. 68 See the exchange between R.A. Duff: “Punishment, Communication, and Community,” and Andrew von Hirsch: “Punishment, Penance and the State,” in Matt Matravers, ed: Punishment and Political Theory (Oxford: Hart Pub. Co. 1999), p.48 and p.69. 69 An expressive theory of punishment, as I understand it here, includes both a descriptive and a normative ingredient. The descriptive component claims that punishment is (partly) expressive; we will be unable to distinguish punishments from other modes of hard treatment or unpleasant consequences imposed by the state (e.g., civil commitment or taxation) unless we understand that punishment expresses censure. The normative component claims that expressions of censure are essential to the justification of punishment; we will be unable to defend the practice of punishment without explaining why state expressions of censure are valuable and important. In what follows, I tentatively assume the truth of both ingredients of an expressive theory of punishment. 70 Not all theorists have been persuaded by expressive theories of punishment. For a lengthy critique of expressive theories generally, see Matthew Adler: “Expressive Theories of Law: A Skeptical Overview,” 19 follows, I will make no attempt to defend this assumption. My immediate aim is to explore its implications for the last resort principle. Later, I will consider the consequences of rejecting or qualifying this assumption. Although expressive views are typically advanced as theories of punishment, they also have profound implications for the content of the substantive criminal law itself---for issues of criminalization. The reason should be clear.71 Punishments must be justified, and justified punishments must be deserved. Persons can deserve censure and condemnation only if their conduct merits these responses.72 If so, expressive theories provide guidance about what conduct we ought not to criminalize, while also helping us to decide what offenses we should enact. Dan Kahan has argued that sanctions other than incarceration for serious crimes tend to be resisted by the public because they fail to express stigma.73 When white-collar offenders are fined rather than imprisoned, for example, citizens think the state does not regard their offenses as sufficiently serious.74 But the content of the message to the public would be even more misleading if this conduct were not criminalized at all. The failure to proscribe and punish spousal rape, for example, would indicate that this behavior is less deserving of censure than other kinds of nonconsensual sex.75 Thus I conclude that expressive theories pertain just as much to criminalization as to punishment. Expressive theories are incompatible with the preventive interpretation of the last resort principle. This version of the principle states that noncriminal alternatives should be employed when they are as good or better at preventing given kinds of conduct. Once we understand the criminal law to have both preventive and expressive functions, we 148 University of Pennsylvania Law Review (2000), p.1363. Even theorists broadly sympathetic to expressivist views believe that punishment is better understood to perform communicative rather than expressive functions. See Duff: Op.Cit. Note 68. 71 Although the reason should be clear, the connection between punishment and criminalization is not always drawn. Legal philosophers who have struggled to justify punishment have not always traced the implications of their views for the content of the substantive criminal law. Many have tried to justify punishment as though they could afford to neglect the question of what it is imposed for. 72 The greatest difficulty with this claim is to provide an account of malum prohibitum offenses. For a recent attempt, see R.A.Duff: “Crime, Prohibition, and Punishment,” 19 Journal of Applied Philosophy (2002), p.97. 73 Dan Kahan: “What Do Alternative Sanctions Mean?” 63 University of Chicago Law Review (1996), p.591. 74 See Darryl K. Brown: “Street Crime, Corporate Crime, and the Contingency of Criminal Liability,” 149 University of Pennsylvania Law Review (2001), p.1295, 1335. 20 need to provide a new interpretation of the last resort principle. Even though alternative modes of social control may do a better job in reducing the incidence of criminality, they may fail to achieve an indispensable objective of the criminal sanction: expressing the censure conveyed by punishment. To decide whether alternatives to the criminal law are equally effective, we would have to evaluate not only their ability to reduce crime, but also their efficacy as expressions.76 The following example may be helpful in recognizing this point. Suppose that criminal sanctions for domestic violence were not effective in reducing the incidence of batteries that take place behind closed doors. Imagine that empirical research demonstrated that a criminal law against domestic violence led significant numbers of battered wives to be less inclined to notify the police because they did not want their husbands to be arrested and prosecuted. Suppose the state could adopt noncriminal means to prevent domestic violence that were just as effective as an approach that invoked the criminal sanction. This empirical finding, although interesting and important for many purposes, would not provide a decisive objection to criminalizing acts of domestic violence.77 The point of this law is not only to reduce the incidence of the proscribed conduct, but also to condemn those who engage in it. If we used these empirical studies to conclude that laws against domestic violence should not have been enacted, we would frustrate an objective of the legislature by failing to retain our conventional methods of condemning persons who are guilty of spousal abuse.78 I suspect that theorists who endorse the last resort principle would concur with my judgment about domestic violence. Since they have not explicated the principle in detail, See Dan Kahan and Martha Nussbaum: “Two Conceptions of Emotion in Criminal Law,” 96 Columbia Law Review (1996), p.269, 352. 76 Thus it is odd that Feinberg, who famously defends an expressive theory of punishment, would accept a preventive interpretation of the last resort principle at all---much less incorporate it into his formulation of the harm principle. For a discussion of some of the tensions between these two elements of Feinberg’s thought, see Bernard Harcourt: “Joel Feinberg on Crime and Punishment: Exploring the Relationship Between The Moral Limits of the Criminal Law and The Expressive Function of Punishment,” 5 Buffalo Criminal Law Review (2001), p.145. 77 Suppose, however, that the incidence of domestic violence increased dramatically once criminal penalties were imposed. At some point, the state should sacrifice the value of expressing censure for the sake of increasing prevention. I do not know how to identify when this point is reached. Thus I avoid commitment on the very difficult question of how the preventive and expressive functions cohere in a single theory of punishment and criminalization. See Op.Cit. Note 68. 75 21 however, it is hard to be certain. But commentators who provide examples of the kinds of criminal laws they believe would be jeopardized by the last resort principle indicate that they have different kinds of targets in mind. Since they tend to confine the last resort principle to conduct they almost certainly do not believe to merit censure at all, it is doubtful that they would invoke the principle to demand the repeal of criminal penalties for harmful conduct they find reprehensible. Schonsheck, for example, explicitly applies his principle only to drug offenses and to paternalistic interferences like seat bet requirements.79 Clearly, one need not appeal to a last resort principle to appreciate the controversy that surrounds these offenses; various kinds of objections have been brought against them.80 Since these laws are problematic on many grounds, it is hard to know to what extent our reservations are derived from the last resort principle rather than from other sorts of normative considerations. Of course, the last resort principle could be applied to the expressive function of the criminal law as well as to its preventive function. According to this suggestion, conduct should be criminalized only when no alternative device conveys condemnation as well or better. If punishment were the only way to express censure, we could agree with Moore’s conclusion that criminalization would be the sole means to attain the function of the criminal law.81 On this assumption, the last resort principle would never provide a good reason to repeal (or not to enact) an offense designed to express condemnation. The last resort principle would not become false; it would become trivial and unimportant in a theory of criminalization, and could not retard the trend toward enacting too many offenses and punishing too many persons. Its application to the criminal law would achieve nothing that was not already accomplished by insisting that crime and punishment be expressive--a less controversial (although hardly indisputable) piece of conventional wisdom about our criminal justice system. 78 Presumably, the legislative objective of condemning persons who engage in domestic violence can only be achieved if such persons are arrested and prosecuted. Criminalization alone is insufficient. For a brief discussion of this complication, see Stuntz: Op.Cit. Note 6, pp.521-523. 79 Op.Cit. Note 46, Chapters Four and Six. 80 See for example, Joel Feinberg: Harm to Self (New York: Oxford University Press, 1986); also Douglas Husak: Drugs and Rights (Cambridge: Cambridge University Press, 1992). 81 Although we could agree with Moore’s conclusion, I believe we should disagree with his reason for drawing it. Criminalization would be the only resort because it would be the only way to attain the expressive function of the criminal law. Moore himself does not believe the function of the criminal law is expressive; instead, it is designed to implement a principle of retributive justice. See Op.Cit. Note 62. 22 Punishment, however, is not the only possible way to stigmatize. It is a contingent fact about contemporary societies that the hard treatment imposed on persons who violate the criminal law is the conventional means by which expressive functions are attained. One can certainly imagine rituals other than hard treatment by which condemnation could be expressed.82 In closely-knit societies, devices other than punishment (understood to include hard treatment) may have been sufficient to stigmatize.83 Most sentencing theorists, however, oppose as demeaning those alternative modes of punishment that clearly express stigma but do not involve deprivations---such as “shaming sanctions.”84 But it is important to remember that these sanctions are alternative modes of punishment, not alternatives to punishment. If these alternative modes of punishment are deemed unacceptable, it is hard to believe that stigma could be expressed effectively if punishment were abandoned altogether. In the diverse liberal societies of today, punishment is perhaps uniquely suited to condemn. No formal mechanism seems able to convey censure as directly and forcibly. Although we should remain open-minded that other forms of social control may do a better job than the criminal sanction at preventing given forms of conduct, it seems less likely that alternative means of social control may be more effective at expressing condemnation. More precisely, it seems less likely that alternative means of social control that are acceptable may be more effective at expressing condemnation. It is crucial to keep in mind that the foregoing conclusion---the last resort principle is of little significance in the criminal law---is defensible largely because we would never dream of invoking noncriminal alternatives that might serve as well or better at preventing given kinds of conduct while expressing condemnation. The fact that the criminal law strikes most of us as the only resort in expressing censure may be an indication of the moral progress we have made. Perhaps, then, my conclusion thus far should be expressed as a challenge. If Feinberg himself describes such alternatives, but somehow concludes that “the only way” to vindicate the law is “to punish those who violate it.” See Op.Cit. Note 67, p.104. For a discussion of this apparent inconsistency, see Hugo Bedau: “Feinberg’s Theory of Punishment,” 5 Buffalo Criminal Law Review (2001), p.103, 116. 83 See R.A. Duff: Trials and Punishments (Cambridge: Cambridge University Press, 1986), pp.240-245. 84 For a defense of shaming sanctions, see Kahan: Op.Cit. Note 71. For a rejoinder, see Michael Tonry: “Rethinking Unthinkable Punishment Policies in America,” 46 U.C.L.A. Law Review (1999), p.1751. See also Dan Markel: “Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate,” 54 Vanderbilt Law Review (2001), p.2157. 82 23 the last resort principle is to be helpful in retarding the trend toward overcriminalization and expressive theories of criminalization and punishment are correct, we must identify an acceptable means to stigmatize whatever conduct the principle precludes us from criminalizing. Although I am skeptical, we should not be dogmatic about whether such a device can be found. But a different possibility is worthy of consideration. We might try to salvage the preventive interpretation of the last resort principle, and thus its potential usefulness in a theory of criminalization, by attempting to limit the scope of expressive theories.85 Although it is clear that persons who commit the core offenses of the criminal law qualify for censure, one might contend that the objective of some criminal laws is and ought to be wholly preventive. Of course, the failure of these offenses to include an expressive dimension is precisely what many commentators deem to be objectionable about them.86 As I have indicated, however, existing criminal law has already expanded far beyond its core, and no longer seems to require moral blame as a condition for liability. 87 Theorists need not resign themselves to this development; they can help to retard it without relying on expressive theories by including a last resort principle in their theory of criminalization. This solution seems especially tempting in the case of many white-collar crimes. Consider, for example, the provisions of the mail and wire fraud statutes that punish political powerbrokers who use their influence to obtain government jobs for their friends.88 It is hardly obvious that this conduct merits censure.89 Should these provisions therefore be repealed? Theorists who hope to preserve the expressive function of the criminal law will probably answer in the affirmative. Commentators who are less confident about expressive theories of criminalization and punishment might be able to 85 I do not pretend that these alternatives exhaust the possible solutions to some of the problems I have posed. Yet another response calls for the further development of what has come to be called “middleground jurisprudence.” See “Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law,” 101 Yale Law Journal (1992), p.1795. See also Susan R. Klein: “Redrawing the CriminalCivil Boundary,” 2 Buffalo Criminal Law Review (1999), p.679. 86 The enormous number of these offenses leads one commentator to lament that the criminal law has become a “lost cause.” See Op.Cit. Note 5. 87 See Louis D. Bilionis: “Process, the Constitution, and Substantive Criminal Law,” 96 Michigan Law Review (1998), p.1269. 88 See United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982). 89 But it is hard to be sure. Commentators disagree about the conditions under which conduct merits moral condemnation or censure. See Stuart Green: “Why It Is a Crime to Tear a Tag off a Mattress: 24 appeal to a last resort principle to reach the same conclusion. At the very least, the last resort principle seems far more plausible when applied to such examples than when invoked against proscriptions of domestic violence or other cases of core criminality. Arguably, then, a preventive interpretation of the last resort principle might be salvaged---for that class of criminal laws that are not designed to give rise to censure or condemnation, but are wholly preventive. At least some such laws may exist.90 I am unsure whether the distinction between offenses that are designed solely to prevent and those that (also) involve censure or condemnation parallels other distinctions frequently drawn---between malum in se and malum prohibitum offenses, for example, or between regulatory and non-regulatory offenses. It is hard to know how closely these distinctions overlap, partly because no theorist has ever succeeded in providing an adequate account of them.91 Regardless of how these latter contrasts are ultimately drawn, however, it is unlikely that they will correspond closely to the distinction between offenses that are designed solely to prevent and offenses that (also) involve censure or condemnation. Many (apparent) regulatory offenses---such as those pertaining to the handling of radioactive materials---are sufficiently dangerous to have an expressive dimension. The same is true of many (apparent) malum prohibitum offenses, such as driving on the wrong side of the road. Hence it is probably best not to equate the contrast I am drawing with these older, more familiar (albeit notoriously unclear) distinctions. In the absence of a convenient term to describe the distinction I have in mind, we might simply say that some offenses are wholly preventive in function. When the justifiability of these kinds of offenses is called into question, the last resort principle, understood in preventive terms, seems plausible and important. Thus far, I have described a possible avenue to salvage the preventive interpretation of the last resort principle. Some offenses, I will tentatively suppose, are wholly preventive. But a second and much more straightforward challenge to the preventive interpretation remains. The noncriminal means to reduce a crime like rape--such as courses in self-defense for potential victims---can always supplement, but need Overcriminalization and the Moral Content of Regulatory Offences,” 46 Emory Law Journal (1997), p.1533. 90 Many inchoate laws will be among the most plausible candidates. See Part IV infra. Corporate criminality may provide a second source of examples. See Brown: Op.Cit. Note 74. 25 not replace the criminal law. In fact, it is barely possible to imagine a world in which only criminal prohibitions were used to reduce the incidence of conduct like rape. What would such a world be like? Would we not impose tort liability on rapists? Would we not educate students to believe that rape was wrongful? The criminal law can hardly be expected to be an effective deterrent unless it works in tandem with other mechanisms of social control.92 In other words, the relevant thought-experiment must include a third possible world for our consideration: a world in which both criminal and noncriminal means are used. In almost every case, this third possible world, which combines criminal and noncriminal strategies, would probably reduce the incidence of the conduct in question more effectively than either of the previous two.93 No sensible interpretation of the last resort principle would call for the repeal of a criminal law that contributes to the prevention of harmful conduct, just because criminal and noncriminal alternatives would be equally effective when used alone. When preventing given kinds of conduct is imperative, we have good reason to utilize all means at our disposal, including both criminal and noncriminal strategies.94 If I am correct, the last resort principle, interpreted preventively, offers little hope of alleviating the problem of overcriminalization with which we began. III: ARGUMENTS IN FAVOR I have argued that the last resort principle will not help to retard the trend toward overcriminalization if we assume that all (justified) criminal laws and punishments have an expressive function. Insofar as the criminal sanction is the only acceptable means for state expressions of censure, and state expressions of censure are sufficiently important to 91 See Duff: Op.Cit. Note 71. See Paul Robinson: “The Criminal-Civil Distinction and the Utility of Desert,” 76 Boston University Law Review (1996), p.201. See also Paul Robinson and John Darley: Justice, Liability & Blame: Community Views and the Criminal Law (Boulder: Westview Press, 1995). 93 Of course, this conjecture requires empirical support. For a possible counterexample to this generalization, see my discussion of the forbidden fruit phenomenon in Part IV infra. 94 Admittedly, this approach is rejected when the compelling state interest test is applied to cases in which fundamental rights such as freedom of speech are infringed. See the discussion in Notes 112-115 infra. 92 26 retain, the criminal law turns out to be the only resort. We might qualify this assumption, and apply the last resort principle to that class of offenses (if they exist) that are wholly preventive. Even here, however, the principle is unlikely to prove helpful in reversing the tendency to overcriminalize, since given kinds of conduct are typically prevented most effectively when punishments supplement rather replace than noncriminal strategies. Thus it seems trivial (even if literally correct) to describe the criminal law as the last resort. Admittedly, this conclusion appears somewhat surprising; one would think that the last resort principle would prove valuable in combating the explosive growth of the criminal law---without the need to abandon an expressive theory of punishment. Perhaps, then, we should take a different approach. We have yet to consider whether a theory of criminalization should include the last resort principle. If we understand why some theorists may be inclined to accept this principle, we might gain some fresh insights into how it should be interpreted and applied. Since few theorists have addressed this issue in any depth, possible explanations of why this principle seems plausible will have to be attributed to them. To this end, I propose to introduce a distinction between two kinds of principles that a comprehensive theory of criminalization must include. I will call the first kind of principles substantive. Persons who are punished for violating a criminal law that breaches a substantive principle have a legitimate grievance against the state about the way they have been treated. They have a basis to complain that their treatment is unjust, since they are punished for conduct the state had insufficient moral reason to criminalize. Suppose, for example, that the harm principle should be included in our best theory of criminalization.95 If so, someone who is punished pursuant to a criminal law that violates the harm principle is treated unjustly by the state.96 When criminal laws are enacted that breach the second kind of principle, however, an offender cannot complain that his treatment is unjust. Although he is punished for conduct the state had insufficient For two different lines of defense, see Feinberg: Op.Cit. Note 29, and Joseph Raz: “Autonomy, Toleration, and the Harm Principle,” in Ruth Gavison, ed: Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), p.313. Both defenses treat the harm principle as substantive. 96 I assume that existing criminal laws can breach the harm principle. For a skeptical rejoinder, see Bernard E. Harcourt: “The Collapse of the Harm Principle,” 90 Journal of Criminal Law & Criminology (1999), p.109. 95 27 reasons to criminalize, these reasons are not moral reasons.97 Suppose, for example, that our best theory of criminalization includes principles that bar the state from enacting offenses that cost too much to enforce or involve wasteful allocations of police resources. It is doubtful that someone is treated unjustly when he is punished for breaking a law that violates these principles. Such principles might be called pragmatic.98 As I have indicated, it is not surprising that philosophers of law, anxious to determine whether our system merits the name of criminal justice, have tended to focus on substantive rather than on pragmatic principles of criminalization.99 Should the last resort principle be categorized as substantive or pragmatic? In other words, are persons treated unjustly when they are punished for committing crimes that breach the last resort principle? Neither answer can be dismissed out of hand, as evidence for both interpretations can be given. The (admittedly sketchy) arguments that some commentators actually provide in favor of the last resort principle suggest a pragmatic interpretation. At the same time, the outrage they vent (or barely conceal) in cases in which the principle is allegedly breached would indicate that they construe it as substantive.100 Ultimately, I hope to provide a rationale that conceptualizes this principle as a substantive rather than as a pragmatic component in a theory of criminalization. This defense will make the principle of special interest to philosophers of law. To clarify this matter, we must explore the grounds a theorist might have for believing that criminal sanctions should be used only as a last resort. At least three kinds of accounts might be provided. The first kinds of arguments are the most familiar, and I mention them only to put them aside. The criminal law has economic and utilitarian 97 More precisely, the reasons do not involve considerations of justice to individuals. I am not suggesting that political morality has nothing to say about such issues as resource allocation or law enforcement. I only claim that these reasons do not show the injustice of punishing particular defendants. 98 A similar distinction can be drawn about criminal law defenses. A defendant is treated unjustly when he is convicted despite the fact that he acted in self-defense, for example. But a defendant is not treated unjustly when he is convicted despite the fact that his confession should have been inadmissible under the exclusionary rule. Unfortunately, this contrast is as hard to apply in the context of defenses as in the context of criminalization. See Douglas Husak: Philosophy of Criminal Law (Rowman & Allanheld, 1987), pp.187-188. 99 Most or all of the reasons not to criminalize that Feinberg discussed appear to be pragmatic. See Op.Cit. Note 31. 100 The phenomenon of overcriminalization has certainly given rise to moral complaints. Admittedly, however, few commentators seem to have recognized the distinction between substantive and pragmatic components of a theory of criminalization. Thus it is not surprising that they do not assign the last resort principle to one category or the other. 28 disadvantages that many theorists have discussed at length.101 Some states now spend more on their penal systems than on their systems of higher education, and it is doubtful that taxpayers are getting their money’s worth.102 In addition, criminal sanctions allow for discriminatory enforcement, abuses of power, and sometimes are counterproductive, causing harms more serious than those they prevent.103 I can hardly hope to evaluate the cogency of these allegations, although they are highly controversial. Ashworth counters that economic and utilitarian considerations frequently count in favor of expanding the criminal law, since threats of punishment can be “a relatively cheap, convenient, and swift means of reinforcing a system of regulation.”104 To slow the growth of regulatory offenses seemingly justified by considerations of efficiency, Ashworth appeals not to the last resort principle, but to a principle against criminalizing “minor harms.”105 Whatever the empirical realities may be, it is clear that all such arguments for treating the criminal law as a last resort depend on a careful evaluation of its competitors. Obviously, rival means of social control can be costly and cause a net balance of disutility as well. My main point, however, is that economic or utilitarian arguments in favor of the last resort principle construe it as pragmatic rather than as substantive. That is, they fail to show that persons are treated unjustly when they are punished for committing an offense that is not a last resort. Inefficient or counterproductive laws do not give rise to a grievance on the part of offenders about the injustice of their treatment. Justice to individuals does not require that legal resources be allocated optimally, or that law enforcement do more good than harm.106 In case there is doubt, notice that these defenses of the last resort principle render its application highly contingent---that is, dependent on factors that differ substantially from one time and place to another. In one society, criminal penalties may be a last resort for given kinds of conduct, whereas they are not in another. Technological innovations---like the use of DNA evidence in law 101 Most notably, see Packer: Op.Cit. Note 59. See Elliott Currie: Crime and Punishment in America (New York: Henry Holt and Co., 1998). 103 These allegations are frequently made about drug offenses. See Part IV infra. 104 Op. Cit. Note 3, p.50. 105 Id., pp.50-51. 106 I presuppose that utilitarian considerations do not provide an adequate account of principles of justice. Admittedly, claims about discriminatory enforcement are more difficult to categorize. Arguably, defendants are treated unjustly when they are subjected to racial profiling, for example---even when they are convicted of an offense that unquestionably involves a legitimate use of the criminal sanction. 102 29 enforcement---may make given uses of the criminal sanction more cost-effective.107 It is hard to believe that considerations of justice are quite so contingent; one would expect that principled objections to the use of the criminal sanction would persist, despite whatever progress might be made to reduce corruption or to improve apprehension and detection. Thus I propose to move to the next two grounds for accepting the last resort principle---grounds that construe it as substantive rather than as pragmatic. The criminal law might be a last resort for the simple reason that all liberties are important--sufficiently important to require the state to have a compelling justification before curtailing them. This ground might seem to be implausible. Why believe that all freedoms are so significant that each infringement must satisfy such a demanding criterion? Only the most obtuse political philosophy would identify all liberties as valuable.108 On what possible theory is the liberty to walk a dog on federal grounds, for example, so important that it qualifies for such extraordinary protection?109 A number of prominent political philosophers have addressed this question. They have argued that liberal states should be neutral between competing conceptions of the good life.110 They do not pretend that all liberties are especially valuable according to some objective standard, but that the best political philosophy would allow each person to make his own determination of which freedoms are important. Defenses and attacks of liberal neutrality have given rise to a massive literature.111 Fortunately, we need not decide whether a principle of state neutrality should be accepted. For present purposes, See, for example, Karen Christian: “’And the DNA Shall Set You Free’: Issues Surrounding Postconviction DNA Evidence and the Pursuit of Innocence,” 62 Ohio State Law Journal (2001), p.1195. 108 But see Randy E. Barnett : “The Right to Liberty in a Good Society,” 69 Fordham Law Review (2001), p.1603. 109 41 C.F.R. §§101-20. 311, 101-20. 315 (2002). 110 For example, see John Rawls: A Theory of Justice (Cambridge: Harvard University Press, 1971); Robert Nozick: Anarchy, State, and Utopia (New York: Basic Books, 1974); Ronald Dworkin: “Liberalism,” in Stuart Hampshire, ed.: Public & Private Morality (Cambridge: Cambridge University Press, 1978), p.113; Bruce Ackerman: Social Justice in the Liberal State (New Haven: Yale University Press, 1980); Charles Larmore: Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987); and Thomas Nagel: “Moral Conflict and Political Legitimacy,” 16 Philosophy & Public Affairs (1987), p.215. 111 For forceful criticisms, see George Sher: Beyond Neutrality (Cambridge: Cambridge University Press, 1997); and Richard Kraut: “Politics, Neutrality, and the Good,” 16 Social Philosophy & Policy (1999), p.315. 107 30 the question is whether this ground for protecting liberties can support a last resort principle with any prospects of limiting the reach of the criminal law. I believe that it cannot. For two reasons, a theory that mandates state neutrality toward competing conceptions of the good life provides an inadequate defense of the last resort principle. The first reason is the more contentious. Recall that my preferred theory of criminalization---which requires all criminal laws to satisfy the compelling state interest test---draws inspiration from that body of constitutional law that pertains to infringements of fundamental liberties like freedom of speech.112 These liberties, at least, can only be infringed as a last resort. But the basis for requiring all criminal laws to be a last resort is almost certainly unlike the reason for imposing that requirement on infringements of fundamental liberties. Laws that burden fundamental liberties are subjected to heightened levels of scrutiny not because the state must embrace neutrality, but for the more simple and obvious reason that these liberties are precious. Most defenders of state neutrality would concede this point. These philosophers are not anarchists; they allow interferences in freedom for the purpose of providing a framework in which persons are able to pursue their own conceptions of the good life.113 This framework will probably comprise most of those liberties deemed fundamental under contemporary constitutional law. Thus freedom of religion, for example, is not defended by the same rationale that applies to “ordinary” liberties like the freedom not to notify a licensing authority of a change of address.114 Why is it important that different freedoms are defended by distinct rationales? As long as they can all be defended, why shouldn’t the last resort principle be included in a theory to describe the conditions under which they may be infringed? The answer, I think, is that distinct rationales for different liberties will affect the way the last resort principle is interpreted and applied---and thus whether it will prove useful in a theory of 112 See Op.Cit. Part I. Philosophers who defend this theory differ about how to characterize the class of liberties toward which the state need not be neutral. Some exempt the distribution of “primary goods”---things persons want whatever else they may want---from the requirement of neutrality. Others apply the neutrality constraint only “so far as is possible.” See Dworkin: Op.Cit. Note 110, p.127. Still others restrict neutrality to permissible conceptions of the good---to “those that respect the principles of justice.” See Rawls: Op.Cit. Note 110, p.193. For simplicity, I will describe this class as consisting of those liberties that provide a framework in which persons are able to pursue their own conceptions of the good life. 114 This example is drawn from Simester and Sullivan: Op.Cit. Note 2, p.3. 113 31 criminalization. This point can be illustrated by returning to a puzzle I mentioned earlier. I asked why anyone would suppose that criminal and noncriminal means should be examined independently of one another when determining which alternative is more effective in preventing the conduct in question.115 The more obvious approach is to consider whether criminal and noncriminal means are more effective in tandem than in isolation. But this is not the approach taken when courts decide whether infringements of fundamental liberties satisfy the last resort principle. Consider, for example, the recent attempts by Congress to restrict the access of minors to pornographic materials on the Internet.116 Is a statute that imposes criminal liability on Web site operators who post obscene depictions a necessary means to achieve this objective? Those who challenge these statutes argue that filters are more effective in shielding minors from pornography. But existing filtering technology is imperfect, and some obscene sites are bound to slip through the cracks.117 At the same time, filters may succeed in blocking some obscene materials that are not covered by the statute, such as noncommercial or foreign sites. Why not, then, ask whether criminal prohibitions and filters do a better job than either device by itself? As far as I can tell, courts do not entertain this option, concluding that filtering technology is at least as successful as the statutes in restricting the access of minors to pornography.118 Presumably, the alternative that represents the union of criminal and noncriminal strategies is not evaluated because the statutes burden a fundamental liberty of adult users and Web site operators. Fundamental liberties are so important that they may be burdened only when necessary; slight gains in attaining a legislative objective are insufficient to satisfy this demanding standard when noncriminal alternatives do just as well. In other words, the statutes are deemed to breach the last resort principle, despite the fact that they contribute to the legislative objective, because of the special value of the liberty that is infringed. This approach seems plausible. But the same argument cannot be extended to all criminal statutes; it does not apply to laws that burden non-fundamental liberties. A defense of 115 See Op.Cit. Part II. Consider, for example, the Child Online Protection Act (COPA), 112 Stat. 2681-736 (codified in 47 U.S.C. § 231 (1994 ed., Supp. V). 117 An additional problem is that existing filtering technologies are overinclusive, since they block some appropriate sites for minors. 118 ACLU v. Reno, 31 F.Supp. 2d 473, 497 (1999); Reno v. ACLU, 521 U.S. 844 (1997). 116 32 state neutrality does not purport to show all liberties are precious; it only provides a reason for individuals to make this determination for themselves. When liberties defended by a principle of neutrality are burdened, the last resort principle is more plausibly applied by deciding whether the union of criminal and noncriminal strategies best achieve the legislative goal. Therefore, the last resort principle will be interpreted differently in cases in which fundamental as opposed to “ordinary” liberties are infringed. As so construed and applied, I have concluded that the principle will do little to retard the growth of the criminal law. The second reason to conclude that the last resort principle is poorly supported by a theory that mandates state neutrality toward competing conceptions of the good life is more straightforward. Quite simply, a theory of state neutrality does not help to identify what is distinctively objectionable about the criminal law. The focus on what freedom is burdened shifts attention from how it is burdened. An underlying assumption of the last resort principle is that the criminal law is different. Why might this be so? The answer leads to the third and most persuasive rationale in favor of the last resort principle---a defense that again reveals the dependence of the last resort principle on an expressive theory of criminalization and punishment. Presumably, the criminal law is different in that it subjects persons to punishment. But why is this so important? It is tempting to answer that punishment is different because it is the most coercive mechanism available to the state, or because the hard treatment inherent in punishment is more severe than other sanctions. But these answers are dubious; Ashworth contends that license revocation or other civil remedies may be more coercive, and noncriminal tactics may impose greater hardships than punishment.119 If punishment is sufficiently different to require a heightened standard of justification, part of the explanation is likely to consist in its expressive force. The state must have excellent reasons to subject persons to the ordeal of condemnation. The criminal law should be a last resort because the right not to be subjected to punishment---understood to include both hard treatment and reprobation--is immensely valuable and therefore very difficult to override. Whenever possible, the 119 See Op.Cit. Note 3, p.33. It is hard to know whether Ashworth is correct. We lack reliable measures of whether one means of social control is more or less coercive than another. See Alan Wertheimer: Coercion (Princeton: Princeton University Press, 1987). 33 state should use alternative means of social control that do not infringe this valuable right. Is a right not to be punished really this important? Is it as important as rights acknowledged to be fundamental? I believe that it is---but only if we accept expressive theories of criminalization and punishment. Hard treatment is bad enough; when added to censure, the combination infringes rights that are tremendously valuable. Still, it is hard to be sure that the rights are of comparable significance, since criteria to rank the relative weight of rights are controversial. Whether a right not to be punished is as important as fundamental rights like freedom of speech, for example, depends on several factors. Most obviously, this determination depends on the mode of punishment employed.120 Significant interests are less clearly at stake if the state punishes criminal behavior by a mere fine---even though the fine, unlike a civil sanction, expresses condemnation. In addition, this determination depends on the extent to which the law infringes a core area of the fundamental liberty that is burdened. Laws that abridge commercial speech, for example, simply do not infringe liberties as fundamental as those that abridge political speech. We should not be persuaded that our fundamental liberty to speak is more important than our interest in not being punished by generalizing from examples of laws that infringe core areas of speech and laws that impose trivial punishments. In any event, if forced to choose, I am confident that many persons would prefer to surrender their right to freedom of speech than their right not to be subjected to hard treatment and censure. This conjecture does not prove the latter right to be as important as the former, but I am unsure how else this conclusion might be defended. Thus we should concede that a right not to be subjected to hard treatment and censure should not be infringed without a compelling rationale. But the justificatory task is even more complex than is generally supposed. This complexity is due to the fact that two distinct interests are infringed when the state enacts and enforces a criminal proscription. First, persons have an interest in being free to perform whatever conduct has been criminalized.121 The strength of this interest varies with the value of the conduct 120 Thus Colb argues that a right not to be punished is equal in value to a fundamental right only when the former involves incarceration. See Op.Cit. Note 21. 121 Or so I will suppose. I assume, for example, that murderers have an interest in committing murder, even though a justification to proscribe murder is easy to construct. 34 proscribed, and is greatest when that conduct involves a fundamental right. Second, persons have an interest in being free from the punishment to which they become subject when they engage in the proscribed conduct. The strength of this interest is independent of the value of the conduct proscribed, but varies with the severity of the hard treatment and condemnation inherent in punishment. I want to elaborate on these two distinct interests, each of which is necessarily burdened when the state enacts and enforces criminal legislation. First, the state needs a justification to discourage given types of conduct. Should the state endeavor to discourage nonmarital sex, for example? These questions may be hard. But once the decision to discourage has been justified, the state has the option of employing any number of noncriminal means to reduce the incidence of the conduct in question. If the state elects to criminalize, it must be prepared to infringe more than the liberty to perform whatever conduct has been proscribed. In addition, the state inevitably burdens the interest in being free from punishment. All punishments, I have tentatively supposed, impose hardship and express condemnation. What is the justification for burdening this second interest---the interest in not enduring deprivation and condemnation? We cannot simply reply that the defendant has engaged in conduct the state has good reason to discourage. To justify punishment, something is needed in addition to whatever justifies the initial decision to discourage the behavior in question. The criminal law is different and must be evaluated by a higher standard of justification because it burdens interests not implicated when other modes of social control are employed. These interests can be illustrated by returning to my earlier example.122 Suppose that the liberty to eat sausage is not especially valuable. If so, the state would need only a minimal reason to dissuade persons from exercising this liberty. This reason might justify noncriminal means to decrease consumption---taxation, bans on advertising, or educational programs, for example. But the interest burdened by a criminal law against eating sausage is much more significant. Persons have not only an interest in eating sausage, but also an interest in not being punished when they disregard the proscription. This latter interest is far more important than the former, so the state needs a much better reason to infringe it. Even though the state may have a good reason 122 See Op.Cit. Part I. 35 to discourage given kinds of behavior, it may lack a good reason to subject those who engage in them to the hard treatment and reprobation inherent in punishment. If the criminal law could operate by eliminating given kinds of conduct, the only substantive consideration relevant to criminalization would be the value of the liberty that is infringed when conduct is prohibited. In reality, of course, the criminal law operates quite differently; it proscribes, but it does not always prevent. If the law in question is indeed a criminal law, those who violate it will become subject to punishment. These punishments must be justified---a task that has proved enormously difficult. Punishments involve hard treatment and censure, both infringements of rights that should not be permitted in the absence of compelling reasons. The criminal law should be a last resort because it inevitably burdens two liberties: the liberty to engage in the proscribed conduct, as well as the liberty not to be subjected to the hard treatment and condemnation inherent in punishment. Even noncriminal means of discouragement will burden the first of these liberties. In a world of less than perfect compliance, however, criminal sanctions will always include an additional burden. This burden is tolerable if the ends are sufficiently important and cannot be achieved in some other way. But the last resort principle will preclude criminalization when alternative means to accomplish the legislative objective are available. Once again, however, my earlier caveat is in order. In describing the criminal law as the last resort, we should not assume that no alternative could possibly infringe liberties as valuable as those implicated in the criminal sanction. Alternatives that are worse than the criminal law are easy to imagine. Fortunately, such alternatives are seldom regarded as serious candidates for implementation.123 Among the devices of social control we are likely to deem acceptable, the criminal law should be used only as a last resort. I believe that the foregoing account provides a plausible basis for including the last resort principle in a theory of criminalization. Still, it fails to rescue the principle from the charge of triviality with which this Part began. My argument depends on accepting an expressive theory of criminalization and punishment. Thus the last resort principle is For a discussion of some of these possibilities, see the special issue on “Responses to the September 11 Attacks,” 25 Harvard Journal of Law and Public Policy (2002), pp.399-814. 123 36 no more effective in checking the expansion of the criminal sanction than the less controversial principle that criminal offenses and punishment must have an expressive function. Admittedly, some criminal laws may be wholly preventive. If so, it is hard to know what is supposed to be so special about the criminal law, and why it (and not other modes of social control) may only be used as a last resort. Hard treatment without condemnation may not be worse than noncriminal sanctions. Of course, even offenses that are wholly preventive must be justified within a theory of criminalization, and we must remember that adequate reasons for the state to discourage conduct do not entail adequate reasons for the state to punish those who disregard the proscription. Perhaps we can show that adequate reasons to punish require criminal sanctions to be used as a last resort. Even so, preventive objectives are likely to be achieved most effectively when noncriminal strategies are combined with punishments. Thus I conclude that the last resort principle will do little to reverse the trend toward criminalizing too much and punishing too many. IV: AN APPLICATION: DRUG OFFENSES The test of any principle is its implementation in practice. The difficulties I have described are better appreciated by attending to particular cases than to abstract generalities. In this Part, I propose to briefly consider a specific example---the crime of illicit drug possession---to examine how the last resort principle might be applied.124 As one might anticipate, no simple conclusions will be drawn. Virtually all of the foregoing problems and uncertainties in interpreting the last resort principle will resurface here. Our drug policy urgently needs drastic reform. But anyone who believes that fundamental change can be achieved by including the last resort principle in a theory of criminalization must be prepared to address a number of hard questions I will raise here. 21 U.S.C. §841(a) (2002): “It shall be unlawful for any person knowingly or intentionally to possess a controlled substance…” State laws proscribe the same conduct. 124 37 I select this example for several reasons.125 First, the application of a last resort principle to drug proscriptions would seem to have the potential to bring about enormous improvements in our system of criminal justice. At the present time, drug offenses constitute the single most important manifestation of our tendency to criminalize too much and to punish too many. A few statistics tell the story. In 2000, approximately 1,600,000 persons were arrested for drug offenses in the United States.126 About 81% of these were arrested for simple possession.127 Approximately 460,000 drug offenders are in jails and prisons across the country---about the same number as the entire prison population in 1980.128 Nearly one of every four prisoners in America is behind bars for a non-violent drug offense.129 This ratio has climbed dramatically. In 1986, about 18 of every 100,000 American citizens were imprisoned for a drug offense; that figure had jumped to 63 a decade later.130 From 1980 to 1997, the number of non-violent offenders in state prisons tripled, while the number of drug offenders increased 11-fold.131 In each year since 1988, more drug offenders than violent criminals have been sent to prison.132 Federal law enforcement in particular has become fixated on drugs; federal agencies made over 30,000 arrests for drug offenses in 1999, but only about 5,000 arrests for violent crimes. About 58% of all federal inmates are incarcerated for drug offenses,133 and the mean prison term actually served has increased to over 40 months.134 These data prompted General Barry McCaffrey, the former drug czar of the United States, to characterize the prison system in the United States as an American gulag.135 125 Although other possible applications may be equally challenging theoretically, they have much less significance in our system of criminal justice. One might evaluate the punishment of parents whose teenagers are truant or sexually active. See Susan Kuo: “A Little Privacy Please: Should We Punish Parents for Teenage Sex?” 89 Kentucky Law Journal (2000-2001), p.135. 126 Sourcebook of Criminal Justice, Table 4.1. 127 Id., Table 4.29. 128 129 130 131 132 133 134 Id., Table 6.51. Id., Table 6.53. 135 38 Drug policy has attracted increasing numbers of critics.136 Some of these critics have appealed (implicitly or explicitly) to a last resort principle to challenge the status quo.137 Those who are skeptical of our current approach have a special reason to hope that the last resort principle can be applied here. Although dissatisfaction with our present course is widespread, no model to replace it has gained widespread acceptance. Perhaps the implementation of a last resort principle to the status quo will help to produce a drug policy that is palatable to a broad range of thinkers from all points along the political spectrum, many of whom have struggled to find a “third way” between the draconian practices of today and the uncertain risks of legalization.138 In fact, some commentators believe that the last resort principle has already been partially implemented. Later, I will comment on the source of their optimism: the “drug court” movement. How would the inclusion of a last resort principle in a theory of criminalization be likely to alter our drug policy? One point can be defended a priori. Earlier, I speculated that the last resort principle seems to have important implications for our longstanding practice of enacting a number of overlapping, lesser-included offenses.139 The consequences for schemes of drug offenses are profound if this speculation is accurate.140 Even those persons who merely possess drugs almost always commit more than a single offense. Consider, for example, a statute proscribing drug possession or distribution within 1000 feet of a school zone, broadly construed to include most cases of simple 136 The most concise challenge is posed by Ethan Nadelmann: "Drug Prohibition in the United States: Costs, Consequences and Alternatives," 245 Science (1989), p.939. But the most common complaint is that punishments for drug offenders are too severe. See Douglas Husak: “Desert, Proportionality, and the Seriousness of Drug Offenses,” in Andrew Ashworth and Martin Wasik, eds: Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998), p.187. 137 See, for example, Schonsheck: Op.Cit. Note 48. 138 Moderates in drug policy include Mark Kleiman: Against Excess: Drug Policy for Results (New York: Basic Books, 1992); and Peter Reuter: “Hawks Ascendant: The Punitive Trend of Drug Policy,” 121 Daedalus (1992), p.15. 139 See Op.Cit. Part I. 140 One complication I do not explore is that sensible interpretations of the last resort principle would seem to apply to whole statutory schemes, rather than to particular statutes---at least for those offenses that are wholly preventive. There is little point, for example, in applying the last resort principle to prohibitions of drug possession within proximity of a video arcade without applying it to prohibitions of drug possession generally. 39 possession.141 Clearly, one cannot violate this law without possessing or distributing drugs simpliciter. Suppose the state’s purpose in proscribing drug possession and distribution within a school zone is compelling. Even so, this objective could be attained without enacting the school zone statute, since another law can be used to achieve the same result. Thus, it is hard to see how this statute could satisfy the last resort principle.142 Unfortunately, not much else about the ramifications for drug offenses is quite as clear. If my preceding observations about the last resort principle are correct, basic reform is most likely to occur if proscriptions of drug possession are wholly preventive, and lack an expressive function. I have suggested that those offenses with an expressive dimension---which arguably comprise the entire universe of the criminal law as it ought to be---are effectively immunized from change under the last resort principle. No alternative state mechanism to censure persons who possess drugs is likely to prove acceptable. But is the offense of illicit drug possession wholly preventive, or is it partly designed to convey condemnation? Unfortunately, this is one of the most hotly contested points of debate between contemporary prohibitionists and their critics. A number of commentators strongly denounce illicit drug use in moral terms. Consider, for example, the perspective adopted by James Q. Wilson: If we believe---as I do---that dependency on certain mind-altering drugs is a moral issue and that their illegality rests in part on their immorality, then legalizing them undercuts, if it does not eliminate altogether, the moral message. That message is at the root of the distinction between nicotine and cocaine. Both are highly addictive; both have harmful physical effects. But we treat the two drugs differently, not simply because nicotine is so widely used to be beyond the reach of effective prohibition, but because its use does not destroy the user’s essential humanity. Tobacco shortens one’s life, cocaine debases it. Nicotine alters one’s habits, cocaine alters one’s soul.143 21 U.S.C. §860 (2002): “Any person who violates 21 USCS § 841(a)(1) by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of [a school], is [subject to a punishment].” State laws proscribe the same conduct. 142 The state could succeed in imposing more severe punishments on persons who posses drugs in proximity to a school through separate sentencing procedures. See Op.Cit. Part II. Such an arrangement provides further evidence that any revisions in our criminal justice system brought about by implementing a last resort principle may not be as profound as initial appearances might indicate. 143 James Q. Wilson: “Against the Legalization of Drugs,” 89 Commentary (1990), p.21, 26. More recently, he claims that nicotine addiction is unlike cocaine addiction in that the former “may hurt the body” while the latter “degrades the spirit.” See James Q. Wilson: The Moral Sense (New York: Free Press, 1993), p.94. 141 40 William Bennett, the country’s first drug czar, concurs. He writes: “The simple fact is that drug use is wrong. And the moral argument, in the end, is the most compelling argument.”144 Public opinion appears to support these views. Roughly two-thirds of Americans agree that illicit drug use is morally wrong. Sixty-four percent say that marijuana use is morally wrong, and seventy-six percent report that they would continue to oppose the legalization of cocaine and heroin, even if they could be guaranteed that it would lead to less crime.145 Even those commentators who are less vocal in their moral reservations about illicit drugs frequently oppose decriminalization on the ground that it would “send the wrong message.”146 This allegation is rarely developed in detail. I assume these commentators should be understood to claim that the criminalization and punishment of illicit drug possession is partly expressive, communicating censure and reprobation. The failure to retain criminal penalties for drug offenders would negate this message, indicating that drug use is condoned or even approved. Does this allegation also contain an empirical conjecture about how basic reforms would affect the incidence of drug use? It is hard to be sure. At any rate, no serious research has tried to identify how citizens would construe the content of the message in various reforms.147 On the other hand, many drug policy critics emphatically reject the moralism endorsed by Wilson and Bennett. Some argue that illicit drug use is protected by a moral right,148 while others allege that support for this right can be found in the Constitution.149 William Bennett: “The Plea to Legalize Drugs Is a Siren Call to Surrender,” in Michael Lyman and Gary Potter, eds: Drugs in Society (Cincinnati: Anderson Pub. Co., 1991), p.339. 145 See the several surveys described in Robert J. Blendon and John T. Young: “The Public and the War on Illicit Drugs,” 279 Journal of the American Medical Association (1998), pp.140-141. 146 Two authors describe this as “the most frequent objection to harm reduction.” See Robert MacCoun and Peter Reuter: Drug War Heresies (Cambridge: Cambridge University Press, 2001), p.388. Most notably, President Bush has remarked that “legalizing drugs would completely undermine the message that drug use is wrong.” See his statement announcing the new head of the Office of the National Drug Control Policy (May 10, 2001). 147 “In the absence of [empirical] evidence, the rhetorical hypothesis that harm reduction conveys approval of drug use is largely speculative.” See MacCoun and Reuter: Id., p.391. 148 See Thomas Szasz: Our Right To Drugs (New York: Praeger, 1992); Husak: Op.Cit. Note 78. 149 See David Richards: Sex, Drugs, Death, and the Law: An Essay on Human Rights and Overcriminalization (Totowa, N.J.: Rowman & Littlefield, 1982); Robert W. Sweet and Edward A. Harris: “Moral and Constitutional Considerations in Support of the Decriminalization of Drugs,” in Jefferson Fish, ed: How to Legalize Drugs (Northvale, N.J.: Jason Aronson, 1998), p.430. 144 41 A great many reformers prefer to understand drug abuse as a medical problem.150 Presumably, little or no moral stigma attaches to conditions that require medical treatment. Still others who refrain from moralistic condemnation reject disease models of use and addiction.151 Disagreement about the moral status of drug use is important. If we really hope to contract the size and scale of the criminal law by challenging our drug policy, the more obvious route is to question whether drug possession merits censure. If no condemnation is warranted, we do not need a last resort principle to object to impositions of criminal liability for drug possession. Expressive theories do the job more simply. But how should we decide whether the criminalization of illicit drug possession is partly expressive or wholly preventive? Those commentators who insist that illicit drug use is wrongful are owed a reply. A philosopher would like to respond to their arguments. Unfortunately, detailed arguments for the alleged immorality of drug use are almost never produced; this judgment is typically put forward as a kind of brute moral fact or uncontrovertible moral intuition. In the absence of an argument in favor of this judgment, it is hard to know how a reply should be structured.152 When commentators do not defend their views, conflicts of moral intuitions are nearly impossible to resolve. Thus we must remain uncertain about the important question of whether the offense of illicit drug possession serves an expressive function. Commentators who answer this question affirmatively will remain convinced that our only (and not just our last) resort is to continue to criminalize possession. For several reasons, however, little progress is forthcoming even if we assume that this offense is wholly preventive. The first problem is to identify exactly what this offense is designed to prevent.153 This question raises yet another area of intractable disagreement among drug policy theorists. In the case of core offenses with an obvious expressive dimension, the nature of the harm See Alan Leshner: “Addiction Is a Brain Disease, and It Matters,” 278 Science (1997), p.45. See, for example, Gene M. Heyman: “Is Addiction a Chronic, Relapsing Disease?” in Philip B. Heyman and William N. Brownsberger, eds: Drug Addiction and Drug Policy (Cambridge: Harvard University Press, 2001), p.81. 152 Among the most frustrating aspect of contemporary drug policy is that no clear rationale in its favor has ever been articulated by legal authorities. See Douglas Husak and Stanton Peele: “’One of the Major Problems of Our Society’: Imagery and Evidence of Drug Harms in U.S. Supreme Court Decisions,” 25 Contemporary Drug Problems (1998), p.191. 153 Henceforth, in assuming that drug offenses are wholly preventive, I will presuppose that harm is the state of affairs they are designed to prevent. 150 151 42 to be prevented is beyond dispute; the conduct to be prevented is identical to the conduct proscribed. Clearly, arson is the conduct to be prevented by the crime of arson. But some offenses are exceptions to this simple rule. If an offense is inchoate, the conduct criminalized is not identical to the conduct to be prevented. When the state criminalizes attempted murder, for example, it is not really interested in decreasing the incidence of attempts---the conduct actually proscribed---but rather the incidence of successful murders. In a possible world in which attempts did not increase the prospects of success, there would be no reason to punish them.154 An offense is inchoate when the conduct proscribed is not identical to the conduct to be prevented, but is punished because it creates an unacceptable risk that a consummate harm will occur.155 The state endeavors to reduce this risk by enacting an inchoate offense. If this account of the nature of an inchoate offense is accepted, the numbers of such offenses are multiplied far beyond the textbook examples of solicitation, conspiracy, and attempt. Any offense that is designed to prevent a risk of harm, rather than harm itself, is inchoate. Which offenses satisfy this definition? This question cannot be answered without a catalogue of consummate harms the criminal law is designed to prevent.156 Although some existing offenses are very difficult to categorize as choate or inchoate,157 one point seems evident: the offense of drug possession cannot be choate. Merely possessing something is almost never harmful.158 No one would dream of criminalizing drug possession unless it created an unacceptable risk of subsequent harm, either to the user or to others.159 154 That is, there would be no reason to punish attempts if we assume that they are wholly preventive. When attempts do not increase the prospects of success---as in the case of impossible attempts---the rationale for punishment becomes more tenuous. See R.A. Duff: Criminal Attempts (Oxford: Clarendon Press, 1996), Chapter Three. 155 For further thoughts, see Douglas Husak: “The Nature and Justifiability of Nonconsummate Offenses,” 37 Arizona Law Review (1995), p.151. 156 See George Fletcher: Rethinking Criminal Law (Boston: Little, Brown and Co., 1978), p.133. 157 The offense of disseminating pornography, for example, may plausibly be categorized as choate or inchoate. See Fletcher: Id., p.132. 158 I qualify this generalization because the mere possession of some things---say, radioactive materials--might be harmful. 159 If I am correct that the offense of drug possession is inchoate, its justifiability within a theory of criminalization must be resolved by applying whatever criteria are used to assess inchoate offenses generally. See Douglas Husak: “Reasonable Risk Creation and Overinclusive Legislation,” 1 Buffalo Criminal Law Review (1998), p.599. 43 What consummate harm is the offense of drug possession designed to prevent? Many theorists immediately assume that the answer is drug use.160 Most commentators gauge the success or failure of various policy initiatives by examining their effects on rates of drug consumption.161 In other words, the objective of drug proscriptions is what might be called use-reduction. Drug use itself is harmful, and the best reason to proscribe possession is that use would increase unless punishments were imposed.162 Of course, no one purports to curb use solely by relying on the criminal sanction. Earlier, I suggested that noncriminal means to reduce given forms of conduct---such as education--can always supplement, but need not replace criminalization.163 Why would anyone doubt that a combination of criminal and noncriminal strategies is the most effective means to achieve the ultimate goal of drug policy---a reduction of the consummate harm of drug use? In fact, there are at least two plausible grounds for entertaining this very doubt. The first challenge is the more basic. Can it really be true that use is the consummate harm that drug proscriptions are designed to prevent? How can drug use itself be a harm? Approximately 80 or 90 million living Americans have tried an illicit drug at some point in their lives; as a group, they are not readily distinguishable from the slightly larger population of abstainers.164 No harm need occur on the literally tens of billions of occasions in which drugs have been consumed. Drug use might increase the risk that some subsequent harm will occur, but almost certainly is not harmful per se. In other words, a proscription of drug use, no less than a proscription of drug possession, is an inchoate offense, designed to reduce the risk of some other harm that use may cause. This train of thought assigns a new and different objective to drug policy. The more 160 Remarkably, few jurisdictions actually punish drug use. I assume that this failure is due to the fact that possession is easier to prove. See Markus Dirk Dubber: “Policing Possession: The War on Crime and the End of Criminal Law,” 91 Journal of Criminal Law and Criminology (2001), p.829. 161 The Office of National Drug Control Policy (2002) lists “stopping use before it starts” as the “number one priority” of national drug control strategy. See www.whitehousedrugpolicy.gov/policy/ndcs.html. 162 Commentators offer very different estimates of the extent to which drug use would increase under various schemes of decriminalization. For a useful summary, see MacCoun and Reuter: Op.Cit. Note 146, p.73. 163 See Op.Cit. Part II. 164 Longitudinal studies of drug users provide the best evidence for this claim. The most well-known such study is Jonathan Shedler and Jack Block: “Adolescent Drug Use and Psychological Health,” 45 American Psychologist (1990), p.612. 44 appropriate goal is harm-reduction.165 Avenues for reform are opened if one concedes that the ultimate objective of drug policy is not use-reduction but the prevention of various consummate harms to which use might lead. The best way to minimize these harms may not be to proscribe the use and possession of drugs. Perhaps these consummate harms are prevented more effectively by dispensing with criminal sanctions. The existence of what might be called substitution effects provides powerful evidence that use-reduction should not be endorsed as the ultimate objective of drug policy. Suppose that punishment reduces the use of given drugs. This conclusion would not demonstrate the success of our drug policy if those persons who had been deterred simply switched to an even more dangerous drug.166 The substitution effects of drug prohibitions are unknown.167 But several commentators have suggested that the development and popularity of especially hazardous substances like PCP and crack would not have occurred but for the criminalization of less dangerous drugs.168 The very real possibility of substitution effects demonstrates that use reduction should not be accepted as the appropriate goal of drug policy. A specific example of a harm-reduction initiative that does not require criminalization may be helpful. The National Institute on Drug Abuse lists over 25,000 annual fatalities from illicit drug use.169 But a majority of these deaths are more properly attributed to drug prohibition than to drug use. Some 14,300 deaths are due to hepatitis 165 See Patricia Erickson, et.al: Harm Reduction: A New Direction for Drug Policies and Programs (Toronto: University of Toronto Press, 1997); G. Alan Marlatt, ed: Harm Reduction: Pragmatic Strategies for Managing High Risk Behaviors (New York: Guilford Press, 1998); James A. Inciardi and Lana D. Harrison, eds: Harm Reduction: National and International Perspectives (Thousand Oaks, Cal: Sage Publications, 2000). 166 Substitution effects complicate assessments of many other policies, most notably those involving gun control. The ultimate objective of prohibiting assault rifles, for example, is not to reduce the number of unlawful injuries caused by assault rifles, but to reduce the number of unlawful injuries overall. If persons cause as many injuries by substituting other weapons for those that have been proscribed, no reasonable person would proclaim the ban to be a success. See Gary Kleck: Targeting Guns: Firearms and their Control (New York: Aldine De Gruyter, 1997), pp.114-117. 167 Prohibition has almost certainly led some persons to prefer licit to illicit drugs, and this preference may not be defensible on harm-reduction grounds. According to one commentator, “one of the silver linings on the black cloud of greater drug use under different legalization regimes is the prospect that less dangerous drugs would drive out the more dangerous ones.” Ethan Nadelmann: “Thinking Seriously about Alternatives to Drug Prohibition,” in Fish: Op.Cit. Note 149, p.578, 590. 168 See, for example, Randy E. Barnett: “Curing the Drug-Law Addiction: The Harmful Side Effects of Legal Prohibition,” in Jeffrey Schaler, ed: Drugs: Should We Legalize, Decriminalize, or Deregulate? (Amherst, N.Y.: Prometheus Books, 1998), p.155. 169 See www.nida.nih.gov. 45 and AIDS---diseases that are not caused by drugs, but (mostly) by the dirty needles that addicts tend to share. Needle exchange programs could prevent many of these fatalities. Researchers have consistently found that needle exchange programs reduce HIV transmission among those who inject drugs, as well as among their sexual partners and children.170 Many states and municipalities in the United States have implemented these findings. But the possession, distribution, and sale of syringes remain criminal offenses in much of the country, and the federal government does not allow funds to be allocated for needle exchange programs. Opponents worry that needle exchanges would increase use---as though this objection, even if correct, would be decisive. “Zero tolerance” policies unashamedly aim to make the predicament of the addict as dreadful as possible in order to discourage others from engaging in drug experimentation. Social initiatives designed to minimize the harmful consequences of addiction inevitably conflict with those designed to reduce the prevalence of drug use. We might evaluate a far more general strategy for reducing the consummate harms caused by drug use. One means to protect the welfare of persons is to compensate them for the harmful losses they have suffered. Those who endorse the last resort principle may have good reason to implement this device in our drug policy. Why not experiment with a “harmfulness tax” on the sale of illicit drugs?171 The revenues could be used to pay for the medical and social costs of drug use, with the rate of taxation on given drugs adjusted periodically to reflect new data about the degree to which they are harmful. Manufacturers would have an incentive to improve the safety of their products in order to reduce the amount of their tax---an incentive that is conspicuously lacking under our current prohibitionist regime. Commentators who believe that drug policy must aspire to minimize use dismiss this proposal out of hand. The idea that people may use drugs if only they pay for the privilege is anathema to those who insist that no use should be tolerated. Presumably, however, theorists who endorse the last resort principle and subscribe to a harm-reduction model should believe that criminal liability may be See Ricky Bluthenthal, et.al.: “Drug Paraphernalia Laws and Injection-Related Infectious Disease Risk among Drug Injectors,” 29 Journal of Drug Issues (1999), p.1. 171 See Lester Grinspoon and James Bakalar: “Arguments for a Harmfulness Tax,” 20 Journal of Drug Issues (1990), p.599. 170 46 imposed only if we are confident that such a scheme would be less effective than punishment in reducing the amount of ultimate harm.172 Thus far, I have questioned whether use-reduction should be regarded as the objective of our drug policy, and have proposed that harm-reduction might be a more sensible goal. We might reduce harm without criminalizing use. But even if we concede that use-reduction is our ultimate objective, we still can challenge the claim that a combination of criminal and noncriminal strategies is the most effective way to attain it. Perhaps there are exceptions to my earlier generalization that criminal and noncriminal strategies prevent given kinds of conduct more effectively than either alternative alone. In what follows, I want to briefly consider whether the prevention of drug use may be among these exceptions. I will mention two (of several possible) hypotheses that explain how the incidence of illicit drug use might actually increase under our prohibitionist regime.173 First, consider the forbidden fruit phenomenon. Many individuals---most notably adolescents---are attracted to a kind of conduct precisely because it is forbidden.174 These individuals are more likely to engage in given behaviors that have been criminalized. Although all drug policy theorists acknowledge the importance of the forbidden fruit phenomenon in explaining the prevalence of drug use, its true extent is unknown.175 Still, its role is probably significant. Social scientists have vividly described how social norms motivate people to engage in a variety of risky behaviors.176 The decision to smoke a cigarette, or not to buckle a seatbelt, is less a function of the utility of these behaviors than of their reputational effects. Since reputations are affected by the legal status of the conduct in question, drug use is probably subject to a substantial 172 Some commentators worry that a tax on some dangerous substances would have to be exorbitant, and the black market would reappear. See Joel W. Hay: “The Harm They Do To Others: A Primer on the External Costs of Drug Abuse,” in Melvyn B. Krauss and Edward P. Lazear, eds: Searching for Alternatives: Drug-Control Policy in the United States (Stanford: Hoover Institution Press, 1991), p.200. 173 At least one critic of drug prohibitions predicts a net decrease in use after decriminalization. See David Boaz: “The Consequences of Prohibition,” in David Boaz, ed: The Crisis in Drug Prohibition (Washington, D.C.: Cato Institute, 1990), p.1. 174 The phenomenon is well confirmed in cases of ratings for sexual content and violence in television and film. See Brad J. Bushman and Angela D. Stack: “Forbidden Fruit Versus Tainted Fruit: Effects of Warning Labels on Attraction to Television Violence,” 2 Journal of Experimental Psychology (1996), p.207. 175 “The drug research literature has no systematic research on the forbidden fruit hypothesis.” MacCoun and Reuter: Op.Cit. Note 146, p.89. 47 forbidden fruit effect.177 Suppose, then, that the forbidden fruit phenomenon were sufficiently extensive to increase the incidence of illicit drug use as much or more than threats of punishment reduce it. If the offense of drug use and possession were wholly preventive, those who embrace a last resort principle would have no reason to continue to punish drug users. A second mechanism explains how the incidence of drug use could actually decrease if punishments were no longer imposed. The vast majority of drug users quit voluntarily after a relatively brief period of experimentation---typically, within five years of initial use.178 But hundreds of thousands are arrested and convicted, and punishment itself may raise the probability of subsequent drug use by exacerbating criminogenic tendencies in the long run. Although sentences for drug offenses are severe, no one proposes to keep users behind bars indefinitely.179 Because of their criminal records, drug offenders who have been incarcerated are less likely to find housing or employment, to re-establish ties with families, or to regain self-esteem. As a result, they may resume their use of drugs or turn to criminality. If the increase due to punishment were equal to or greater than the decrease due to deterrence, criminal sanctions may actually bring about a net increase in use.180 This result is believable, since threats of punishment are not especially effective in deterring drug use.181 These two hypotheses provide reason to suspect that proscriptions of drug possession may not succeed in minimizing use. These offenses may constitute an exception to the general rule that more prevention occurs when criminal and noncriminal approaches are combined. If the rationale for these offenses is wholly preventive, 176 See Elijah Anderson: Streetwise: Race, Class, and Change in an Urban Community (Chicago: University of Chicago Press, 1990); Fred M. Hechinger: Fateful Choices: Healthy Youth for the 21st Century (New York: Hill and Wang, 1992). 177 See Cass Sunstein: “On the Expressive Function of Law,” 144 University of Pennsylvania Law Review (1996), p.2021. 178 See MacCoun and Reuter: Op.Cit. Note 146, p.16. 179 The Constitution, however, creates no barriers to life imprisonment for drug possession. See Harmelin v. Michigan, 111 S.Ct. 2680 (1991). 180 In addition, the infliction of severe punishments to deter drug use may undermine social stability by exacerbating the precursors to social disruption, thereby increasing crime and drug use in the long run. See Tracy Meares: Social Organization and Drug Law Enforcement,” 35 American Criminal Law Review (1999), p.191. See also Jeffrey Fagan and Tracy Meares: “Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities,” (forthcoming). 48 proscriptions may be ineffective or even counterproductive. We do not know whether either of these hypotheses is true, but they cannot be dismissed out of hand. Because of their plausibility, the application of the last resort principle to drug offenses might help to produce genuine reform after all. But we cannot be sure. No one can hope to discuss the application of the last resort principle to the offense of drug possession without mentioning the drug court movement. Since their inception in 1989, nearly a thousand drug courts have been created across the country, leading some commentators to proclaim them a “revolution in criminal justice.”182 Although differences among these courts preclude simple generalizations, all drug courts offer offenders the option of court-monitored treatment in place of the familiar adjudication process. Defendants who complete the treatment regime are exempted from punishment for their crimes. The popularity of these courts might be taken to indicate that our criminal justice system has begun to appreciate that punishments for drug offenders should be imposed only as a last resort. For many of the reasons already described, however, I think we should be skeptical of this judgment. In the first place, the so-called therapeutic jurisprudence dispensed by drug courts may simply amount to punishment under a different name.183 These courts impose strenuous demands on defendants; they could never have been established if the public perceived them as soft on crime. Why not, then, construe these courts to impose an alternative mode of punishment, rather than an alternative to punishment? Although many defenders of drug courts are aware of this problem, they seem curiously unmoved by it.184 Some commentators seem to think that a disease model of addiction--presupposed by most drug court personnel---moots the importance of traditional notions See, for example, Jeffrey Fagan: “Do Criminal Sanctions Deter Drug Offenders?” in Doris MacKenzie and Craig Uchida, eds: Drugs and Crime: Evaluating Public Policy Initiatives (Thousand Oaks: Sage Publications, 1994). 182 Jeffrey Tauber: Drug Courts: A Revolution in Criminal Justice (Washington, D.C.: Drug Strategies, 1999). 183 See Richard C. Boldt: “Rehabilitative Punishment and the Drug Treatment Court Movement,” 76 Washington University Law Quarterly (1998), p.1205. 184 Hon. Peggy Fulton Hora, et al: “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America,” 74 Notre Dame Law Review (1999), p.439. 181 49 of justice.185 But why? If drug use were not a criminal offense, these courts would lose their authority to force defendants to undergo treatment. Any version of a last resort principle implemented by these courts would be a principle of sentencing, not of criminalization. The relevant question of criminalization is why users of illicit drugs--any more than smokers of tobacco or even consumers of fatty foods---should be required to appear before judges in the first place. This question is not answered by conceptualizing drug addiction as a disease. If the logic of forcing the sick to undergo treatment were so unassailable, evading concerns about justice, why not eliminate the need for informed consent throughout all of medicine? We would not dream of requiring persons with cancer or diabetes to appear before doctors (let alone judges) and made to undergo treatment---even if we were confident (as is not the case here) that treatment is effective. Why, then, do we impose this demand on drug users? This is the fundamental question that cannot be circumvented by those who purport to dispense therapeutic justice. Until this question is answered, we should remain skeptical that drug courts reflect the last resort principle. Moreover, meaningful applications of a last resort principle require us to decide whether noncriminal alternatives are effective. But we simply do not know whether drug courts work. According to some commentators, drug court judges are nearly unanimous in believing that they do.186 Nonetheless, almost no empirical studies confirm the effectiveness of therapeutic jurisprudence.187 Narrative and anecdote have replaced traditional methods of evaluation in drug courts.188 This is no way to apply a last resort principle. Finally, how is effectiveness to be measured? Unless we are clear about our objectives, we can hardly decide whether criminal laws are needed to attain them. In most or perhaps all drug courts, use-reduction is regarded as the criterion of success. Defendants complete their treatment regime only if they do not test positive for drugs. I have already argued that harm-reduction is a more appropriate goal of our drug policy. 185 See the discussion in James L. Nolan: Reinventing Justice: The American Drug Court Movement (Princeton: Princeton University Press, 2001), pp.204-208. 186 Id., pp.108-110. 187 Thus some commentators have described the rationale of drug courts as “fuzzy-headed.” See Morris B. Hoffman: “The Drug Court Scandal,” 78 North Carolina Law Review (2000), p.1437, 1440. 188 See Nolan: Op.Cit. Note 185, pp.111-132. 50 These remarks do not indicate that the drug court movement should be abandoned. These courts probably represent an improvement over the status quo; most users prefer treatment to incarceration. But this concession provides faint praise for the movement. As I have said, virtually anything we are likely to deem socially acceptable is preferable to traditional modes of punishment. Those who include a last resort principle in their theory of criminalization must ask why our criminal justice system should do anything at all to drug users. Arguably, the state should leave them alone unless and until they commit some crime other than that of merely using an illicit substance, and drug use should be addressed solely by noncriminal strategies. This is the default position of justice that needs to be refuted by those who take a last resort principle seriously. When drug courts are evaluated relative to this alternative---rather than by the alternative of incarceration---I doubt that commentators will remain enthusiastic about them. In this Part I have raised a number of difficulties in attempts to decide how the last resort principle applies to the offense of drug possession. Virtually all of the considerations I have discussed are extraordinarily speculative. They involve empirical and theoretical controversies that are not likely to be resolved anytime soon. We do not know whether proscriptions of drug possession are designed to convey stigma and condemnation. Nor do we have much idea how whether various reforms would “send the wrong message.” Arguably, existing offenses are not expressive, but are wholly preventive in function. If so, we are not clear about exactly what it is they are designed to prevent. In all probability, they are intended to reduce some consummate harm other than use itself---although the nature of this harm has never been identified and is subject to enormous debate. In any event, it is hardly obvious that use needs to be punished in order to reduce several of these harms. But even if these offenses are intended to prevent use, we cannot be confident that criminal sanctions (with or without noncriminal strategies) will help to achieve this goal. Perhaps more use, or at least more harmful use, occurs because punishments are imposed. I have mentioned two mechanisms that might produce this result. In short, we cannot be sure about how including a last resort principle in a theory of criminalization would affect our drug policy. And though the details would differ from case to case, I suspect that many of these same problems would reappear if the last 51 resort principle were applied elsewhere. These tremendous uncertainties provide concrete reason to doubt that the last resort principle (as sensibly construed) would have a revolutionary impact on our system of criminal justice. None of these unresolved issues should persuade us that the last resort principle should not be included in a theory of criminalization. But they demonstrate that the affect of a last resort principle is likely to depend on where the burden of proof is allocated and how that burden can be discharged. Needless to say, this latter question is undecided as well. Fortunately, however, the task of applying a last resort principle to drug offenses may soon require less conjecture and guesswork. Perhaps the proliferation of drug courts is a step in the right direction, but there is good reason to be skeptical. Of greater significance is the fact that the decriminalization of at least some illicit drugs is becoming the norm in much of Europe and has been proposed in Canada.189 What will happen when these reforms are implemented? Will drug use increase? Will drug-related harms increase as well? Of course, we can always find reason to doubt that findings from other times and places are readily adaptable to the United States in the 21st century. Nonetheless, those who seek further evidence about the impact of a last resort principle should eagerly await the results of these reforms. 189 Portugal may provide the best example. See Mirjam van het Loo, Ineke van Beusekom, and James P. Kahan: “Decriminalization of Drug Use in Portugal: The Development of a Policy,” 582 The Annals of The American Academy of Political and Social Science (2002), p.49. 52