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Overcriminalization - Too Much Punishment, or Not Enough?

Updated on December 29, 2013

Incarceration - the Statistics

Did you know that out of roughly 8 million people in the world behind bars, 2.2 million of them are jailed in the United States? One fourth of all the imprisoned individuals come from one country, one that considers themselves the "land of the free", but actually has the highest incarceration rate in the world. While there are many necessary crimes, there are also unnecessary ones that do more harm to society than good.

Jails provide a great service to society, but at what cost?

  1. Billions of dollars every year are spent on housing, feeding, and caring for prisoners each year; in 2003, that number reached 185 Billion dollars (7). This number is detrimental to taxpayers because the money they have earned and worked for could potentially be used towards jailing people who do not need to be jailed.
  2. The high number of incarcerated persons affect our culture of compliance. If too many things are illegal, then less people will want to follow the law (12). This goes along with another point, that people will not follow a law if they do not know what the law is (11). Too many laws means that less people will understand the law; they will simply be ignorant to these laws and the purpose of them.
  3. Often times the lives of those imprisoned are ignored upon release. Loss of political, social, and economic rights are only a few of the problems these people face after entering the free world again (6). Even while serving a sentence, stories of rape, assault, and even murder are not uncommon in today's jails and prisons, even those with substantial law enforcement.

Growing Trends in Crime and Imprisonment

Since the early 1900s, the amount of incarcerated persons has skyrocketed. What is the reason for this increase? In an interview with Jeffrey Beard, secretary of the California Department of Corrections, he suggested that "the prison populations around the country have been driven largely by the fact that we have locked up more and more less serious offenders and we have locked up offenders for longer periods of time." (Root Causes). This is a problem because these long sentences for less serious offenses have detrimental effects and are often times unjust.


A Personal Opinion Poll

Which law in the United States do you think is the most unjust?

See results
Douglas Husak
Douglas Husak | Source

Douglas Husak and his Contribution to the Study of Just and Unjust Laws

Not every law that gets passed is just. Some laws affect only a portion of the population; they are restricted by race, gender, or social status. Other laws are just plain unnecessary, according to Husak. In his thesis, he writes that "A substantial amount of contemporary punishments are unjust because they are inflicted for conduct that should not have been criminalized at all" (Overcriminalization 2). Punishment for doing wrong is justice, but too much punishment is an injustice, especially when these laws restrict something that shouldn't even be illegal.

Examples of unjust punishment according to Husak include...

  1. Too much punishment for behaviors that should be illegal. Husak states that "an adequate theory of criminalization could include a principle of proportionality, according to which the severity of the sentence should be a function of the seriousness of the crime" (Overcriminalization 13). The amount of punishment received is directly proportional to how serious the offense is. If the offense is severe, it should be punished accordingly. However, more and more people are being incarcerated for petty crimes and longer times.
  2. Offenses of risk prevention include drunk driving laws and drug laws. Husak sees these as unjust because "most drug offenses are intended to reduce the risk of some subsequent (but unspecified) harm". He also sees these offenses as ancillary, or those offenses "designed to facilitate proof of those crimes that cause whatever ultimately harms the regime of drug prescriptions is designed to prevent" (Overcriminalization 47). These laws tend to overlap with one another, thus the person charged with a crime is getting charged with the same offense in different ways. An example of this is the case of someone possessing and (potentially) distributing an illicit substance. It is impossible to distribute something without initially possessing it

Antony Duff
Antony Duff | Source

Duff's Argument Against Husak's Unnecessary Offenses

Husak suggested that unnecessary offenses included those that were "hybrid offenses", or things like drunken driving and statutory rape laws. These are hybrid offenses because they are based on what a person “knows” rather than what the law actually is. For example, a 20 year old man in a relationship with a 17 year old girl and has sex with her could potentially be charged with statutory rape, even if he knows that the relationship with the girl is consensual. Antony Duff, an expert on the philosophy of punishment, provided an opposition for Husak, saying these laws were necessary because of the following reasons.

Duff's first point is that even an individual who commits a hybrid offense knows that his action is safe; he does not know that he knows this. There is no proof of this knowledge other than what he himself says. If the man does not know that he knows this, then his action displays civic arrogance because he puts his knowledge above the knowledge of others. If his action displays civic arrogance, then it is wrong. Therefore, the action of an individual who commits a hybrid offense is wrong (Overcriminalization 108).

The Utilitarian Argument to Husak


Would a true utilitarian agree with Husak and his unnecessary laws? Some would say yes, that the cost of taxes and incarcerating prisoners outweighs the need to have them behind bars. But, when creating laws, these two viewpoints may disagree with each other. Let's use the example of fatty and unhealthy foods.

Fast food is extremely unhealthy, causing a multitude of problems like heart disease, high cholesterol, and obesity. It would be in the greater good for fast food to be illegal to prevent people from becoming obese and harming themselves by eating this food. Husak says that everyone has a right not to be punished for eating unhealthy food. A simpler form of Husak's belief is that everyone has a right not to be punished. The right to not be punished serves as a constraint that prevents us from justifying criminal law based solely on appeal to utility.


No system of laws is entirely perfect. Different laws affect societies differently, and while there may be unnecessary laws, many of them are necessary to abide by because their purpose is to serve and protect the population. Whether they are necessary or unnecessary, the law is the law; and it is the duty of the citizens to abide by them.


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