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Mala Prohibita, the Wrongfulness Constraint, and the Problem of Overcriminalization

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Abstract

The wrongfulness constraint, as a principle of criminalization, is supposed to preclude criminalization in the absence of wrongfulness. Crimes that look especially problematic from the perspective of the wrongfulness constraint are mala prohibita offenses. The aim of this Essay is to consider the question whether the wrongfulness constraint can serve as an effective tool to curb overcriminalization by looking at the case of mala prohibita offenses. This Essay defends the following propositions. First, because of the availability of an array of tools to defend various mala prohibita offenses as satisfying the wrongfulness constraint, it is often not a straightforward matter to demonstrate that committing a malum prohibitum offense is not wrongful. Second, as a result, the wrongfulness constraint is of limited use as a way of stemming the tide of overcriminalization. The Essay concludes by suggesting, more broadly, that the problem of overcriminalization is not that too many crimes violate the wrongfulness constraint but that criminal laws, even those that satisfy the wrongfulness constraint, can easily become a source of oppression, and that asking whether crimes violate the wrongfulness constraint may be counterproductive because the question misdirects our attention.

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Notes

  1. See, e.g., R.A. Duff, The Realm of Criminal Law (Oxford: Oxford University Press, 2018), pp. 1–2; Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008), pp. 3–54.

  2. See, e.g., Duff, The Realm of Criminal Law, pp. 55–56; Husak, Overcriminalization, p. 66.

  3. 31 USC s. 5316(a) (1986) (‘[A] person . . . shall file a report . . . when the person . . . knowingly . . . transports, is about to transport, or has transported monetary instruments of more than $10,000 at one time . . . from a place in the United States to or through a place outside the United States; or . . . to a place in the United States from or through a place outside the United States’.); 31 USC s. 5316(b) (1986) (‘A report under this section shall be filed at the time and place the Secretary of the Treasury prescribes’.); 31 USC s. 5322 (2001) (‘A person willfully violating this subchapter or a regulation prescribed or order issued under this subchapter . . . shall be fined not more than $250,000, or imprisoned for not more than five years, or both’.); see also United States v. Bajakajian, 524 U.S. 321 (1998).

  4. Douglas Husak, ‘Malum Prohibitum and Retributivism’, in R.A. Duff and Stuart Green (eds.), Defining Crimes: Essays on the Special Part of the Criminal Law (Oxford: Oxford University Press, 2005), pp. 65–90. For other important contributions to the topic around the same time, see Stuart Green, ‘Why It’s a Crime to Tear the Tag off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses’, Emory Law Journal 46 (1997): pp. 1533–1615; R.A. Duff, ‘Crime, Prohibition, and Punishment’, Journal of Applied Philosophy 19(2) (2002): pp. 97–108. A number of theorists have devoted more attention to the topic since then. See, e.g., Duff, The Realm of Criminal Law, pp. 20–21, 58–70, 313–322; Andrew Cornford, ‘Preventive Criminalization’, New Criminal Law Review 18(1) (2015): pp. 1–34; A. P. Simester and Andreas von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Portland, OR: Hart Publishing, 2011), pp. 24–29; Victor Tadros, ‘Wrongness and Criminalization’, in Andrei Marmor (ed.), The Routledge Companion to Philosophy of Law (New York: Taylor & Francis, 2012), pp. 157–173.

  5. See Husak, ‘Malum Prohibitum and Retributivism’; Duff, The Realm of Criminal Law (‘pure and impure’), pp. 313–322; Stuart P. Green, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime (New York: Oxford University Press, 2006), p. 120 (‘mala in se and mala prohibita qualities’); John Gardner, Offenses and Defences: Selected Essays in the Philosophy of Criminal Law (New York: Oxford University Press, 2007), p. 239.

  6. Cf. Michael Sevel, ‘Obeying the Law’, Legal Theory 24 (2018): pp. 191–215.

  7. Husak is illuminating on this question as well. Douglas Husak, Ignorance of Law: A Philosophical Inquiry (New York: Oxford University Press, 2016).

  8. The controversy surrounding ignorance of law defenses implicates two types of concerns: notice and culpability. Cf. Husak, Ignorance of Law. Notice concerns have to do with whether there has been fair notice of the penal consequences of certain acts that may appear innocent. Culpability concerns have to do with whether people who do not realize that they are committing criminal acts are culpable. The question at issue here is not whether persons who violate a law without realizing it lack fair notice, but whether persons who unknowingly violate a law are culpable for reasons having to do not only with the underlying badness of the conduct, but also with disobedience.

  9. Morissette v. United States, 342 U.S. 246 (1952).

  10. See, e.g., 22 USC s. 2778(c) (2014); 50 USC s. 1704(c) (1977); see also Richard Lazarus, ‘Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law’, Georgetown Law Journal 83(7) (1995): pp. 2448–2450, 2454, 2468–2471.

  11. Susan R. Klein and Ingrid B. Grobey, ‘Debunking Claims of Over-Federalization of Criminal Law’, Emory Law Journal 62(1) (2012): pp. 9–10 (‘Moreover, the Court has implied a mens rea in many federal offenses that might otherwise appear to be strict liability offenses’.); id., p. 70–71.

  12. For a discussion, see Kimberly Ferzan, ‘Defending Imminence: From Battered Women to Iraq’, Arizona Law Review 46 (2004): pp. 213–262; Benjamin Zipursky, ‘Self-defense, Domination, and the Social Contract’, University of Pittsburgh Law Review 57 (1996): pp. 579–614.

  13. These line-drawings may be deemed reasonable even if they end up convicting (pre-legally) morally innocent people for reasons having to do with, say, the difficulty of policing between justified and unjustified killing.

  14. See, e.g., R.A. Duff, ‘Perversions and Subversions of Criminal Law’, in R.A. Duff et al. (eds.), The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2010), pp. 88–112; R.A. Duff and S.E. Marshall, “‘Abstract Endangerment’, Two Harm Principles, and Two Routes to Criminalisation”, Bergen Journal of Criminal Law and Criminal Justice 3(2) (2015): pp. 149–157; Larry Alexander and Kimberly Ferzan, Reflections on Crime and Culpability: Problems and Puzzles (New York: Cambridge University Press, 2018), p. 84 n.2; Larry Alexander and Kimberly Ferzan, Crime and Culpability: A Theory of Criminal Law (New York: Cambridge University Press, 2009), pp. 309–310; Husak, Overcriminalization, p. 38.

  15. Morissette, 342 U.S. 246; see generally Darryl Brown, ‘Public Welfare Offenses’, in Markus Dubber and Tatjana Hörnle (eds.), The Oxford Handbook of Criminal Law (New York: Oxford University Press, 2014), pp. 862–883.

  16. See, e.g., 31 USC s. 5322 (2001); 15 USC s. 80b-17 (1975); see also Lazarus, ‘Meeting the Demands of Integration in the Evolution of Environmental Law’, p. 2441 (‘[A]t the federal level, Congress has virtually criminalized civil law by making criminal sanctions available for violations of otherwise civil federal regulatory program’.).

  17. 18 USC s. 1957 (2012) (criminalizing engaging in ‘a monetary transaction in criminally derived property of a value greater than $10,000 [where the property] is derived from specified unlawful activity’).

  18. 31 USC. s. 5316(a); see n.4 above.

  19. See generally Sandra Guerra Thompson, “The White-Collar Police Force: ‘Duty to Report’ Statutes in Criminal Law Theory”, William & Mary Bill of Rights Journal 11(3) (2009): pp. 3–65; Sungyong Kang, “In Defense of the ‘Duty to Report’ Crimes”, UMKC Law Review 86 (2017): pp. 361–403; Gerard E. Lynch, ‘The Lawyer as Informer’, Duke Law Review 1986 (1986): pp. 520–521.

  20. Alexander and Ferzan, Reflections on Crime and Culpability: Problems and Puzzles, pp. 17–60.

  21. See, e.g., John Simmons, Moral Principles and Political Obligations (Princeton, New Jersey: Princeton University Press, 1979).

  22. Joseph Raz, The Authority of Law: Essays on Law and Morality (New York: Oxford University Press, 1979), p. 234.

  23. 18 USC s. 401 (2002).

  24. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), p. 115.

  25. Leslie Green, The Authority of the State (New York: Oxford University Press, 1988); George Klosko, Political Obligations (New York: Oxford University Press, 2005).

  26. Cf. Duff, The Realm of Criminal Law, p. 333.

  27. Rawls, A Theory of Justice, p. 112.

  28. It is possible that the car is safe to drive and the individual has put in enough effort to assure himself of that on his own, without getting the car inspected by a mechanic authorized by the state to issue a certificate of safety. Is that not sufficient for doing one’s fair share? It may not be, since one’s ‘fair share’ may consist of not only making sure that the car is safe to drive but also to reassure other people that the car is safe to drive by displaying a proof of inspection. Cf. Duff, The Realm of Criminal Law, pp. 328–332.

  29. For a similar argument, see Tadros, ‘Wrongness and Criminalization’, pp. 168–169.

  30. One important basis for objection is that the wrongful conduct is none of the state’s business when the conduct, while wrong, is private, such as a betrayal of one’s friends. See, e.g., Duff, The Realm of Criminal Law, pp. 277–334. This Essay sets that complication aside and focuses on wrongs considered to be public, at least in the sense that the state has a legitimate interest in regulating the conduct. Cf. id., pp. 75–79, 146–148.

  31. Tadros, Wrongs and Crimes (New York: Oxford University Press, 2016), pp. 167–172; Christopher Heath Wellman, ‘The Rights Forfeiture Theory of Punishment’, Ethics 122(2) (2012): pp. 371–393.

  32. Klein and Grobey, ‘Debunking Claims of Over-federalization of Criminal Law’, pp. 20–32.

  33. William J. Stuntz, ‘The Pathological Politics of Criminal Law’, Michigan Law Review 100(3) (2001): pp. 517–518 (criticizing the breadth of federal law criminalizing mail and wire fraud and misrepresentations); Julie R. O’Sullivan, ‘The Federal Criminal Code Is a Disgrace: Obstruction Statutes as Case Study’, Journal of Criminal Law & Criminology 96(2) (2006): pp. 654, 660–665 (criticizing the redundancy of federal law on false statements and securities fraud and the vagueness of mail and wire fraud statutes).

  34. 18 USC s. 1341 (2008).

  35. 18 USC s. 1343 (2008).

  36. 15 USC s. 78j(b) (2010).

  37. 15 USC s. 78ff (2002).

  38. The literature is extensive. For recent, illuminating discussions; see, for example, Aditi Bagchi, ‘Lying and Cheating, or Self-Help and Civil Disobedience?’, Brooklyn Law Review 85 (2020): pp. 363–367; Courtney M. Cox, ‘Legitimizing Lies’, 90 George Washington Law Review (forthcoming 2022).

  39. Green, Lying, Cheating, and Stealing, p. 151; see also Samuel W. Buell, Capital Offenses: Business Crime and Punishment in America’s Corporate Age (New York: W. W. Norton & Company, 2016), pp. 32–74 (‘[A]n effort to deceive someone in a market becomes fraud only if the norms of the particular market make that behavior wrong’.).

  40. See, e.g., Jed S. Rakoff, ‘The Federal Mail Fraud Statute (Part I)’, Duquesne Law Review 18(4) (1980): pp. 771–822; but see Klein and Grobey, ‘Debunking Claims of Over-federalization of Criminal Law’, p. 10 (‘Vague and sweeping federal offenses, such as obstruction of justice and mail fraud, have . . . been trimmed significantly by the Court’s narrow statutory interpretation to apply to clear instances of what we would all recognize as criminal misbehavior’.).

  41. Cf. Bagchi, ‘Lying and Cheating, or Self-Help and Civil Disobedience?’, p. 10 (‘Lying to strangers about the product you are selling impairs a particular social institution, the market.’).

  42. 18 USC s. 1001 (2006).

  43. Lisa Kern Griffin, ‘Criminal Lying, Prosecutorial Power, and Social Meaning’, California Law Review 97(6) (2009): pp. 1515–1570.

  44. See Bagchi, ‘Lying and Cheating, or Self-Help and Civil Disobedience?’, p. 363–367; Cox, ‘Legitimizing Lies’.

  45. Green, Lying, Cheating, and Stealing, p. 170; Griffin, ‘Criminal Lying, Prosecutorial Power, and Social Meaning’, p. 1557–1567.

  46. Klein and Grobey, ‘Debunking Claims of Over-federalization of Criminal Law’, p. 6 (describing the ‘astronomical rise in the number of prosecutions for drug and immigration offenses, which now dwarf all other offense categories’.).

  47. 21 USC s. 841 (2018).

  48. 8 USC s. 1325 (1996).

  49. 8 USC s. 1326 (1996).

  50. On immigration, see generally Jennifer M. Chacón, ‘Overcriminalizing Immigration’, Journal of Criminal Law and Criminology 102(3) (2012): p. 614 (‘[O]ur immigration policy provides a paradigmatic example of overcriminalization’.); Juliet Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power’, American University Law Review 56(2) (2006): p. 382 (‘[V]iolations of immigration law are now criminal when they were previously civil, or carry greater criminal consequences than ever before’.); David Alan Sklansky, ‘Crime, Immigration, and Ad Hoc Instrumentalism’, New Criminal Law Review 15(2) (2012): p. 160 (describing how overcriminalization and ‘the frequently deplored tendency of criminal law to expand into areas for which its heavy-handed machinery seems ill-suited’ contribute to the blurring of lines between criminal law and immigration policies). On drugs, see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2012), pp. 59–96; Douglas Husak, Legalize This!: The Case for Decriminalizing Drugs (London: Verso, 2002), pp. 44–48.

  51. 18 USC s. 1957 (2012).

  52. 18 USC s. 1956(c)(7) (2016).

  53. Cf. Husak, ‘Malum Prohibitum and Retributivism’, p. 67 (arguing that, granting that a person commits a first wrong by, say, accepting a bribe, ‘it is hard to see why persons who deposit or withdraw [criminally derived] funds from banks commit a second wrong’).

  54. Cf. Peter Alldridge, What Went Wrong with Money Laundering Law? (London: Macmillan Publishers Ltd., 2016).

  55. 3 Wayne LaFave, Substantive Criminal Law s. 20.2 (St. Paul, MN: Thomson Reuters, 2019).

  56. MPC s. 242.4.

  57. MPC s. 242.3(3).

  58. Alice Ristroph, ‘Regulation or Resistance?: A Counter-Narrative of Constitutional Criminal Procedure’, Boston University Law Review 1555 (2015): pp. 1593, 1596.

  59. R. A. Duff and S. E. Marshall, ‘Civic Punishment’, in A. W. Dzur, I. Loader, and R. Sparks (eds.), Democratic Theory and Mass Incarceration (Oxford: Oxford University Press, 2016), pp. 33–59. To be clear, Duff and Marshall’s views are nuanced in ways that we cannot get into here, and they are certainly not in favor of a ‘legal duty’ to assist the state that could lead to punishment for failure to turn oneself in.

  60. 18 USC 1073 (1996); see United States v. Bando, 244 F.2d 833, 843 (2d Cir. 1957) (“The words ‘to avoid prosecution’ mean ‘to avoid being prosecuted.’ The statute does not say ‘to avoid a pending prosecution.’ . . . . It is sufficient if the fleeing felon is ‘subject to prosecution.’”).

  61. Cf. Husak, Overcriminalization, pp. 55–177 (distinguishing between ‘internal’ and ‘external’ constraints).

Acknolwedgements

For helpful comments on earlier drafts, I thank Antony Duff, Sandra Marshall, and Alex Sarch. Special thanks are due to an anonymous referee for the careful and probing comments. Thanks also to Chrystel Yoo and Susu Zhao for research and editorial assistance.

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    Youngjae Lee

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Lee, Y. Mala Prohibita, the Wrongfulness Constraint, and the Problem of Overcriminalization. Law and Philos 41, 375–396 (2022). https://doi.org/10.1007/s10982-022-09443-z

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