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  • look at two different theories prescribing why societies should criminalize behavior

  • compare these theories to the reasons our government presently criminalizes behavior

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Criminalization Theories

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“There is no recognized general principle for testing the propriety or impropriety of government interference…

The main thesis of this essay is that one simple principle should govern a society before it compels or control individuals. This applies whether the means of regulation are physical force (legal penalties) or moral coercion (public opinion).

The principle is: The only legitimate grounds on which humans can interfere with the liberty of others are self‐​protection or the prevention of harm to third parties.

The physical or moral well‐​being of the actors themselves is not a sufficient warrant for interfering. It is wrong to regulate people to make them better/​happier — or because others believe it right to do so. These might constitute good reasons for remonstrating, reasoning, persuading, or entreating people — but not for prohibiting or forcing them to act in particular ways.

To justify interference, the conduct must intend causing evil to someone else.

Conduct affecting others is the only part of human conduct amenable to societal control. In conduct about their own persons, the independence of individuals is rightfully absolute. Over themselves — their own bodies and minds — individuals are and should be sovereign…

[T]he principle of liberty requires freedom of tastes and pursuits. Liberty means planning our lives to suit our own characters. We should be able to do what we like if we do not harm others. Other people may think our conduct foolish, perverse, or wrong. However, they have no right to impede it.”

From On Liberty: A Translation to Modern English (1859) by John Stuart Mill
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“The link of social solidarity to which repressive law corresponds is the one whose break constitutes a crime. We shall understand this link if we understand what crime essentially is. The essential characteristics of crime are those which are found wherever crime occurs, no matter what the social type.

Thus, the only characteristics common to all crimes, which are or have been recognized as such, are the following:

  1. A crime offends sentiments which are found among all normal individuals of any given society;
  2. These sentiments are strong;
  3. They are defined.
  4. A crime is, then, an act which offends strong and defined states of the collective conscience[,] … ‘the totality of beliefs and sentiments common to the average citizens of the same society’”
From The Division of Labor in Society (1893) By Émile Durkheim
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“We do not reprove it because it is a crime, but it is a crime because we reprove it.”

—ÉMILE DURKHEIM

The Modern-Day Reality

Unfortunately, our Congress largely ignores both the harm principle and the theory of community condemnation when making criminal laws.

Instead, lawmakers respond to political incentives.

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They may respond to public outrage by criminalizing conduct that is already criminal, in order to appear to be taking action on a crisis they have no thoughtful response to.

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The result?

Such incentives drive legislators to create far more prohibitions than are desirable or defensible, resulting in overcriminalization—an out-of-control process.

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The Founders’ Vision

Now let’s look at the criminal justice system the architects of American governance intended.

John Trumbull's painting, Declaration of Independence, depicting the five-man drafting committee of the Declaration of Independence presenting their work to the Congress

And there were few things the founders agreed on more fervently than the jury trial—which through the requirement of a unanimous verdict, effectuated the idea of community condemnation within the adjudication process itself.

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Portraits of Alexander Hamilton and William Penn.
Coming Up Next

The Original Trial System

You will…

  • learn the roles and procedures of the American jury trial
  • follow the stories of Andrew Hamilton and William Penn in two deeply‐​intertwined court cases
  • study how those trials formed the foundation of the American criminal justice system the framers envisioned