Douglas Husak

In this article I examine one condition a minimalist theory of criminalization might contain: the criminal law should be used only as a last resort. I discuss how this principle should be interpreted and the reasons we have to accept it. I conclude that 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 this principle to bring about fundamental reform in the substantive criminal law. I argue that the last resort 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 others parts of conventional wisdom about crime and punishment, the application of a last resort principle is unlikely to bring about sweeping changes that theorists might have anticipated

Medical ethicists debate whether or not the moral assessment of cases of euthanasia should depend on whether the patient is 'killed' or 'allowed to die'. The usual presupposition is that a clear distinction between killing and letting die can be drawn so that this substantive question is not begged. I contend that the categorisation of cases of instances of killing rather than as instances of letting die depends in part on a prior moral assessment of the case. Hence is it trivially rather than substantively true that the distinction has moral significance. But even if a morally neutral (ie non-question begging) distinction could be drawn, its application to the euthanasia controversy is problematic. I illustrate the difficulties of employing this distinction to reach moral conclusions by critically discussing Philippa Foot's recent treatment of euthanasia. I conclude that even if an act of euthanasia is an instance of killing, and there exists a prima facie moral duty not to kill, and no more stringent duty overrides this duty, one still cannot determine such an act to be morally impermissible

I examine how deferred-prosecution agreements employed against suspected corporate criminality amount to a form of social engineering that infringes the presumption. I begin with a broad understanding of the presumption itself. Then I offer a brief description of how these agreements function. Finally I address some of the normative issues that must be confronted if legal philosophers who hold retributivist views on punishment and sentencing hope to assess this device. My judgment tends to be favorable. More importantly, I caution against the facile assumption that any means to infringe the presumption is necessarily an illegitimate part of penal practice

Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted. The point of this paper is to take steps to rebut them. I begin by making four conceptual points about retributivism. If I am correct, retributivism comes in countless flavors, and the particular variety to which I am most attracted can be applied to show why some punishments should be less severe than those presently imposed. Next I argue that many persons deserve less punishment than our legal system currently inflicts. Reflection about whether perpetrators should be afforded a complete or partial defense reveals retributivism to be less punitive than conventional wisdom would suggest.

Our drug policy has been widely deemed a failure because the criminalization of drug use has not succeeded in reducing prevalence rates. I contend that the most promising basis to defend the justifiability of drug offenses is to construe them as proxy crimes: offenses designed to prevent the commission of other, more serious crimes. I make a case that many law enforcement officials use drug proscriptions for this purpose in the real world. When construed as proxy crimes, drug prohibitions are less vulnerable to some of the familiar objections brought against their legitimacy. Nonetheless, the justification for punishing those who violate drug proscriptions remains unpersuasive.

I will focus on Tadros’s general views about criminalization and how he contends philosophers should not think about it. Misguided approaches, according to Tadros, include attempts to identify principles that constrain the scope of the criminal law, as well as efforts to establish that given considerations constitute reasons for or against the use of the penal sanction. In what follows, I begin with a few general remarks about the connections between Tadros’s treatment of criminal justice and the real world. Next, I try to salvage the viability of the two approaches to criminalization he rejects. Finally, I turn a skeptical eye to what I take to be the most radical thesis in Wrongs and Crimes: the state should occasionally criminalize conduct that is not wrongful.

I focus on the set of problems that arise in identifying both the actus reus and (to an even greater extent) the mens rea needed by an abettor before she should be criminally liable for complicity in a crime. No consensus on these issues has emerged in positive law; commentators are enormously dissatisfied with the decisions courts have reached; and critics disagree radically about what reforms should be implemented to rectify this state of affairs. I explicitly deny that I will be able to solve these problems, although I hope at least to identify a central source of the confusion. In my view, the problem results largely from conceptualizing the liability of abettors as derivative. This diagnosis helps us to understand why the problem is likely to remain insoluble in positive law. If the test of an adequate theory consists primarily in its ability to produce results that conform to our moral intuitions about how particular cases should be resolved, no approach that can be implemented in the real world will prove wholly satisfactory. I advance a hypothesis about why failure is inevitable and what should be done in light of this predicament. Legal realities compel us to adopt a position that is suboptimal from a moral point of view

A rational defense of the criminal law must provide a comprehensive theory of culpability. A comprehensive theory of culpability must resolve several difficult issues; in this article I will focus on only one. The general problem arises from the lack of a systematic account of relative culpability. An account of relative culpability would identify and defend a set of considerations to assess whether, why, under what circumstances, and to what extent persons who perform a criminal act with a given culpable state are more or less blameworthy than persons who perform that act with a different culpable state.

I respond to Michael Zimmerman and Gideon Yaffe, both of whom have written thoughtful and constructive criticisms of my “Ignorance of Law”. Zimmerman believes I do not go far enough in exculpating morally ignorant wrongdoers; he accuses me of lacking the courage of my convictions in allowing exceptions for reckless wrongdoers and for willfully ignorant wrongdoers. Yaffe, by contrast, thinks I rely on a defective foundation of moral blameworthiness. He proposes an alternative account he alleges to conform more closely to common sense. In responding to both critics, I emphasize that our points of agreement may be more significant than our disagreements.