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[Draft of November 8, 2002; not for citation; comments welcome]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.
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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
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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.
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