Criminal law has long included far too many crimes of questionable merit — crimes of negligible wrongfulness, crimes that cause negligible harm, and crimes that require too little culpability on behalf of offenders. More recently, American criminal law in particular has imposed too much punishment — far more than it used to, far more than any other democratic nation. Douglas Husak’s new book Overcriminalization offers an account of the normative parameters that should describe and limit criminal law, as well as a set of doctrines or tests for achieving those constraints.
In this Review of Husak’s book, I describe Husak’s theory and explore why he directs his argument to legislatures, which caused most of the overcriminalization in the first place, rather than to courts. With respect to most pieces of the overcriminalization problem, I suggest he is probably right to do so, but for reasons other than those he implies. Legislatures are poor institutions for acting on principles that conflict with majority sentiments. Yet legislatures have a long track record of reducing overcriminalization as popular views change, and courts have contributed to that project largely only after legislatures have led the way. Moreover, debates leading to changes in criminal law have often occurred partially on terms Husak makes central to his thesis. Nonetheless, courts may be the better — if still faint — hope for moderating policies of overpunishment, which so far legislatures have largely proven unable to address.