The Limits of Criminal Law

Amidst the war on drugs of the 1980s, Congress passed legislation authorizing federal prosecutors to go after drug dealers and drug kingpins. Next came carjackers, arsonists, deadbeat dads and moms who flee from their duty to pay child support, and bigots who commit hate crimes. The rationale for expanding federal criminal law into these areas is that local police forces have been ineffective in controlling certain kinds of crime. Chief Justice Rehnquist complained in 1999 that Congress is contributing to rising caseloads in federal courts by federalizing crimes already covered by state laws.

Is the act of passing laws a viable solution to the crime problem in the United States? Criminologist Nigel Walker argues there are limits to what criminal law can do and proposes several rules that legislators can use when deciding whether to criminalize certain behaviors.

Legislators should not use criminal law to penalize harmless behavior

Most people in the United States would agree with Walker's idea that harmless behavior should not be penalized, but many would disagree about what is harmful. Then, too, there is the question of “harmful to whom?” Walker and many other liberals think that legislators should criminalize only behavior that is harmful to others. By contrast, conservatives are generally in favor of passing laws that keep citizens from hurting themselves and others.

Legislators should not use criminal law if the penalty does more harm than the offense

On June 8, 1998, the New York Times published an open letter to the United Nations Secretary General as the General Assembly opened a special session on drugs. The letter declared that the global war on drugs has cost society more than drug abuse itself. The letter stated that by focusing on punishing drug users, the United States has created a world‐wide criminal black market that is wrecking national economies and democratic governments. Despite the letter's assertion comparing the costs of drug criminalization versus drug abuse, the letter failed to provide any estimates of the costs of drug abuse.

Legislators should not include in criminal law prohibitions that the public does not support

Walker suggests that legislators shouldn't outlaw something that lots of people want. Take, for example, the U.S. government's criminalization of narcotic drugs. Many Americans want these drugs for recreational and medicinal purposes. Or consider the failure of states that have attempted to ban physician‐assisted suicide. Many Americans believe that helping people into death is not abandonment, but rather compassionate care.

Legislators should not use criminal law to condemn wicked acts

Walker takes issue with ultraconservative politicians and religious leaders who try to legislate morality. To assert moral sentiments for a new criminal law, Walker says, invites an argument as to what is or is not wicked. In a society as diverse as that of the United States, it is easy to find areas of disagreement about good and evil.