The theory of criminalization entails that for a crime to occur there has to be not only the ingredients of a guilty act but also a guilty mind, as per the established maxim of Coke “actus non facit reum nisi mens sit rea” (Douglas 77).
However there has been deviation to the above, leading to court demanding proof of a guilty mind as well as applying the doctrine of strict liability (Douglas 13). Strict liability requirement is an offspring of ‘public perspective’ in matters relating to criminal law (Douglas 43). Thus it is anchored on the notion that criminal law exists for the purpose of deterring public wrongs – in doing so the theory is emphatic that criminal conviction stands as long as the defendant has manifested fault in accordance with each and every one of the elements of a given statute (Douglas 75).
As far as Husak is concerned, this theory of criminalization allows most Anglo American jurisdictions to create offences so casually and routinely; a fact that can lead to criminal law being used as a first resort (Douglas 210). He states that the theory is woefully insufficient. The present theory of criminalization in the eyes of Husak limits or restricts liberties (Douglas 59). It is not possible to challenge the constitutionality of such laws, since courts respond by breaking liberties into two types: fundamental and non-fundamental (Douglas 95).
He further asserts that in the event that these liberties are found to be fundamental, the Courts employ strict scrutiny in addition to applying stringent tests of what is in the best interest of the state (Douglas 113). He notes that in circumstances where a challenged law is in the interest of the state, it gains affirmation. In affirming the challenged law, the courts do not consider the intended purpose of the law (Douglas 213). Thus in the long run, restricting non-fundamental liberties is easy as courts fail to find constitutionality in them as they lack a conceivable legitimate test (states interest). Husak sees this move to be inappropriate as it leads to over criminalization, since the state only requires conceivable legitimate purpose in enacting any given law (Douglas 197). Consequently those who break those laws are punished as per requirements.
Husak suggests that over-criminalization can only be avoided via adopting a theory of criminalization…set of conditions that should be met prior to enactment of any statute that subjects offenders to punishment (Douglas 137). He suggests that last resort principle if included among these conditions can reverse the tread greatly. While Husak attempts to formulate a preventive theory of criminalization that can ease criminal laws (many), this can be worrying considering the escalation of crime rates (LaFollette 27).
Husak fails in that he does not present an equally important tenable theory of criminal harm. Husak’s account on the right of an offender not to be punished, fails to capture the position of direct victims of crimes. Whereas it is justifiable for society to demand imposition of state punishment, direct victims of crime’s position poses a controversial issue. The most worrying issue is that while Husak is only concerned with drug laws, he tries to amplify the whole idea, save with rare clarity.
Work Cited
Douglas H.Overcriminalization: The Limits of the Criminal Law. Hardback, 2007 pp, 7-215.
LaFollette (ed.), Ethics in Practice (Blackwell, 3rd Edition, 2007) pp.23-93.