In both Bond v. United States1134 S. Ct. 2077 (2014). and Yates v. United States,2135 S. Ct. 1074 (2015). the Supreme Court reversed federal criminal convictions. Neither defendant’s conduct was constitutionally protected; there were no procedural irregularities in either trial, no vagueness or overbreadth issues, and no police misconduct. Instead, each case involved prosecuting a small-time individual with a big-time statute: In Bond, the federal government used the Chemical Weapons Convention Implementation Act of 19983Pub. L. No. 105-277, 112 Stat. 2681 (codified as amended in scattered sections of the U.S. Code). against a “jilted wife.”4See Bond,134 S. Ct. at 2083. In Yates, it unleashed the Sarbanes-Oxley Act of 20025Pub. L. No. 107-204, 116 Stat. 745 (codified in scattered sections of the U.S. Code). on a mischievous fisherman.6SeeYates, 135 S. Ct. at 1078-79. Both proceedings raised concerns about overcriminalization that implicitly drove the Court’s analysis in a new direction.
Here, overcriminalization means overlapping statutes, excessive punishments, and harsh “enforcement of petty violations.”7Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703, 716 (2005). Dissenting in Yates, Justice Kagan chastised the plurality for allowing concerns with overcriminalization to override accepted statutory interpretation techniques: she argued that judges should channel their frustration with an overly punitive legislature towards “lectures, . . . law review articles, and . . . dicta,” instead of letting it corrupt their legal reasoning.8Yates, 135 S. Ct. at 1101 (Kagan, J., dissenting). She was right, in part: this Essay suggests that Bond’s majority, along with Yates’splurality and concurrence, envisioned—or at least practiced—a more active judicial role in curbing overcriminalization. They did so by utilizing a new, currently inchoate, substantive canon of construction, which might be called the overcriminalization canon (more precisely, an anti-overcriminalization canon), and which might be justified on due process grounds.
The overcriminalization canon is triggered when the government prosecutes an individual for a single act (or course of conduct) under a criminal statute whose main purpose has nothing to do with the defendant’s conduct, yet which contains broadly worded provisions with words that, read literally, encompass it. The canon applies when the government is demanding years of incarceration for a far-from-deadly criminal act: either it is piling on, adding a federal charge when traditionally a state one would suffice, or it is criminalizing what would normally be a civil infraction. The canon effects a broadening of the usual statutory analysis, allowing the defendant to overcome text that appears unambiguous on its face, and imposes some sort of heightened burden on the government, requiring it to prove that Congress really meant to criminalize the conduct at issue through the particular statute.9The precise extent of this burden is unclear. See infra note 73 and accompanying text.
More specifically, the apparent doctrine forming the overcriminalization canon has two components. The Court begins by identifying two disconnects: that between a statute’s narrow-sounding title and extremely broad language in specific provisions, and that between the common, man-on-the-street meaning of a phrase and the government’s proposed reading of it. The Court then uses these disconnects to find ambiguity in a key term, even if the term is defined by the statute (as in Bond)10See infra note 29 and accompanying text. or the term is frequently used and interpreted as a legal term of art (as in Yates).11See infra notes 56-57 and accompanying text.
Whether an overcriminalization canon would serve as a legitimate counter-majoritarian check on a retributive Congress or an instance of judicial overreach is a difficult issue. However, this Essay concludes by suggesting that due process values might justify it: this argument would require reconsidering the fairness of criminal law’s ignorance-of-the-law-is-no-excuse maxim in light of the mind-boggling volume of federal administrative regulations and legislation.12See infra Part II.
I. Statutory Analysis Gone Awry
A. Bond v. United States
Carol Bond’s husband impregnated her best friend, Myrlinda Haynes.13Bond v. United States, 134 S. Ct. 2077, 2085 (2014). Bond sought nonlethal revenge. She obtained “an arsenic-based compound” and potassium dichromate, then spread them on Haynes’s “car door, mailbox, and door knob.”14Id. She thus inflicted Haynes with a minor chemical burn.15Id. Despite Haynes’s repeated calls about suspicious substances, the local police did nothing.16Id. Finally, when Haynes found powder in her mailbox, the local police suggested she contact federal agents; these agents “caught Bond opening Haynes’s mailbox, stealing an envelope, and stuffing potassium dichromate inside the muffler of Haynes’s car.”17See id.
Bond was convicted of knowingly using “any chemical weapon,” and was sentenced to six years in prison.18Id. at 2085-86. In general, the Chemical Weapons Convention Implementation Act defines a “chemical weapon” as a “toxic chemical and its precursors”19Id. (quoting 18 U.S.C. § 229F(1)(A) (2013)). and “‘[t]oxic chemical,’ in turn, . . . as ‘any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.’”20Id. (quoting 18 U.S.C. § 229F(8) (2013)).
The statute explicitly encompasses both the chemicals at issue—toxic chemicals—and the defendant’s use of them—intending to harm another.21Id. at 2094 (Scalia, J., concurring in the judgment); see also 18 U.S.C. § 229F(7) (2013) (excluding “[a]ny peaceful purpose” from criminal liability). Yet for Chief Justice Roberts (here, writing for the Court), the “exceptional convergence” of three factors required reversal of the conviction.22Bond, 134 S. Ct. at 2093. These factors were (1) the statute’s definition of “chemical weapon,” which went beyond the normal meaning of the phrase;23Id. (2) “the context from which the statute arose,” specifically the disconnect between the defendant’s harassment that happened to use chemicals and the concerns about terrorists employing chemicals in a targeted fashion that motivated the statute’s enactment;24See id. and (3) federalism concerns, because adopting the government’s reading might have “fundamentally upset the Constitution’s balance between national and local power”25Id. given the “purely local crimes” at issue.26See id. at 2092. The first two—detailed below—were the important factors because they justified invoking the third: the Court used the first two to find ambiguity in the statute’s text, and once the Court had the wiggle room that ambiguity often provides, it could invoke federalism’s clear statement requirement—“insist[ing] on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States” to find the statute inapplicable to Bond’s purely local conduct.27Id. at 2090.
The Court’s doctrinal analysis can raise eyebrows. First, it claims the government’s reading of “chemical weapon” does not comport with what “an educated user of English” would consider a “chemical weapon.”28See id. But the statute specifically defines the term, rendering Roberts’s comparison of a common definition to the statute’s curious—Justice Scalia quipped that, on this point, Roberts’s analysis of ordinary meaning was “undoubtedly” correct, “but undoubtedly beside the point.”29Id. at 2096 (Scalia, J., concurring in the judgment). For Justice Scalia, the statutory definition ended the statutory analysis.
Roberts answered that the statute’s “extremely broad” and “general”—although not vague—definition was insufficiently clear to trump the “natural meaning” of the phrase, especially as the former covered purely local conduct.30Id. at 2090 (majority opinion). Additionally, the Court noted that “[t]he substances that Bond used bear little resemblance to the deadly toxins that are ‘of particular danger to the objectives of the Convention.’”31Id. (quoting Ian R. Kenyon, Why We Need a Chemical Weapons Convention and an OPCW?, inThe Creation of the Organisation for the Prohibition of Chemical Weapons: A Case Study in the Birth of an Intergovernmental Organisation 1, 17 (Ian R. Kenyon & Daniel Feakes eds., 2007)). Curiously, the Court’s source for the “objectives of the Convention” was not another provision of the statute, or even legislative history; it was a book published nine years after the statute was enacted.32Comparesupra note 3, withsupra note 31. Justice Scalia pointed out that lay understanding and a nonlegislative source do not generally trump a statutory definition.33See Bond, 134 S. Ct. at 2096 (Scalia, J., concurring in the judgment) (making the point colorfully).
The Court next explored “the context” of the statute’s enactment, and ended up discussing several of the most important issues involved in overcriminalization—although that term was unmentioned. It repeatedly emphasized the stark contrast between the defendant’s intensely personal feud and the large-scale “horrors of chemical warfare.”34Id. at 2083 (majority opinion); see also id. at 2087 (contrasting “war crimes and acts of terrorism” with “Bond’s common law assault”). The Court also trumpeted the title of the statute, which made Bond’s conduct seem almost trivial by comparison.35See, e.g., id. at 2091, 2093. In doing so, the Court showed that Bond’s prosecution exemplifies an important facet of overcriminalization: the use of laws enacted to target the most culpable (or simply, the worst) of a given class of behavior, against those whose actions, while harmful, do not approach those of the most-culpable camp.36This issue is vividly illustrated in the illegal drug context, in which the government uses “the weight of narcotics as a proxy for the culpability of an individual defendant.” Mark Osler, Opinion, We Need Al Capone Drug Laws, N.Y. Times (May 4, 2014), http://nyti.ms/1iSQy76. The use of weight means that “[i]f a kingpin imports 15 kilograms of cocaine into the country and pays a trucker $400 to carry it, they both face the same potential sentence.” Id. It results in “unjust sentences for too many low-level offenders, create[ing] racial disparities and crowd[ing] our prisons.” Id. That is not to say all proxies are equally flawed: the government could use a more appropriate one for drugs such as “the amount of profit that any individual took from the operation of a narcotics ring.” Id. Many criminal laws currently on the books, however, use deeply flawed proxies for culpability, resulting in unduly harsh sentences for many.
Next was overinclusiveness: if the Chemical Weapons Convention Implementation Act covers Bond’s conduct, it would also reach conduct even further removed from chemical warfare, like parents poisoning goldfish.37Bond, 134 S. Ct. at 2091. Even the easily-abused power of prosecutorial discretion,38Commentators recognize that the misuse of prosecutorial discretion is a significant component of the overcriminalization problem. See, e.g.,Erik Eckholm, Prosecutors Draw Fire for Sentences Called Harsh, N.Y. Times (Dec. 5, 2013), http://nyti.ms/1bKpGsr (“Using their discretionary power to apply lengthy ‘enhancements’ on top of required terms, . . . federal prosecutors are strong-arming defendants into pleading guilty and overpunishing those who do not—undermining the fairness and credibility of the justice system.”). which courts are normally powerless to check,39See, e.g., Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 717 (1996) (stating that most prosecutorial decisions “are effectively unreviewable either through judicial or administrative processes”). came under scrutiny.40SeeBond, 134 S. Ct.at 2085 (expressing “surpris[e]” regarding chemical weapons charge); id. at 2092 (describing this prosecution of a “purely local crime” as “unusual”). Under the guise of federalism concerns, the Court opined on redundant punishment, too: “The laws of the Commonwealth of Pennsylvania (and every other State) are sufficient to prosecute Bond.”41Id. at 2092. In other words, the conduct need not be federally criminalized because it would subject offenders to additional incarceration.42Although here, the state laws (as enforced by local police) were insufficient: Bond only stopped terrorizing Haynes once federal agents detained her. Seesupra notes 16-17 and accompanying text.
Less than a year later the Court again reversed a conviction based on crystal clear, but extremely broad, statutory language.
B. Yates v. United States
John Yates was the captain of a commercial fishing vessel.43Yates v. United States, 135 S. Ct. 1074, 1078 (2015) (plurality opinion). In the Gulf of Mexico, he caught undersized red grouper in violation of a federal wildlife ordinance.44See id. at 1079. While still at sea, his ship was boarded by a federal agent as part of a routine inspection, and that agent discovered the undersized fish.45Id. He ordered Yates to leave the fish—suddenly evidence of a federal regulatory violation—untouched until Yates docked the vessel in Florida.46Id. A crew member, at Yates’s direction, threw the fish overboard.47Id. at 1078. Yates was convicted of two federal felonies.48Id. Yates did not appeal his first conviction, which was under a statute that provided “[w]hoever . . . after any search for . . . property by any person authorized to make such search . . . , knowingly . . . dispose[d] of [it] . . . for the purpose of . . . impairing the Government’s lawful authority to take such property into its custody or control or to continue . . . shall be [punished].”49Id. (quoting 18 U.S.C. § 2232(a) (2013)). He did appeal his second one, which was for “knowingly . . . destroy[ing] . . . any . . . tangible object with the intent to impede . . . the investigation . . . of any matter within the jurisdiction of any . . . agency of the United States.”50Id. (quoting 18 U.S.C. § 1519 (2013)). This latter provision was part of the Sarbanes-Oxley Act of 2002, enacted to prevent—or at least, punish—future Enrons.51See id. at 1079 (noting that the Sarbanes-Oxley Act was “designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation”).
The Eleventh Circuit affirmed, rejecting Yates’s statutory argument in six sentences.52See United States v. Yates, 733 F.3d 1059, 1064 (11th Cir. 2013), rev’d,135 S. Ct. 1074 (2015). Justice Ginsburg’s plurality and Justice Alito’s opinion, concurring in the judgment, reversed by employing interpretative tools similar to those employed in Bond. Justice Kagan, however, dissented, and was joined by Justices Scalia, Thomas, and Kennedy. Kagan penned a scathing takedown, naming an opposition to “overcriminalization and excessive punishment” as the real driver of the plurality’s and concurrence’s opinions.53Yates, 135 S. Ct. at 1100 (Kagan, J., dissenting).
In its analysis, the plurality first compared the statute’s title—“Destruction, Alteration, or Falsification of Records in Federal Investigations and Bankruptcy”5418 U.S.C. § 1519 (2013).—with the sweeping plain meaning of “tangible object,” finding a disconnect between the two, as the title refers to records, yet tangible objects include so much more than that.55Yates, 135 S. Ct. at 1083 (plurality opinion). While the plurality uses the term “caption” and not “title,” see id., such differences are irrelevant for present purposes. Because of that disconnect, absent “a clearer indication” of an intent to enact “an all-encompassing ban on the spoliation of evidence,” reading “tangible object” to include all tangible objects would have been contrary to legislative intent.56Id. For the members of the plurality, a contrast between a clear-but-sweeping definition and the narrow-sounding title introduced ambiguity (despite Justice Kagan’s assertion that a statute’s title does not usually narrow the construction of a commonly-used definition).57See id. at 1091, 1094 (Kagan, J., dissenting) (“Dozens of federal laws and rules of procedure (and hundreds of state enactments) include the term ‘tangible object’ or its first cousin ‘tangible thing’—some in association with documents, others not.”). Bond similarly used a contrast to show ambiguity between a clear-but-sweeping definition and the educated-user-of-English’s definition.
The plurality next analyzed the “position” of the section at issue, finding that it militated against accepting the usual meaning of “tangible object.”58Id. at 1083 (plurality opinion). The dissent characterizes this as the “new number-in-the-Code theory.” Id. at 1095 (Kagan, J., dissenting). It also applied the anti-superfluity canon, arguing that it required the Court to avoid an interpretation that would result in “significant overlap” between criminal statutes.59Id. at 1085 (plurality opinion). As the dissent pointed out, significant overlap is not the same thing as superfluity,60Id. at 1095 (Kagan, J., dissenting). and regardless several congressmen knew of the overlap,61Id. at 1096 (collecting remarks). so interpreting the phrase to avoid such overlap was arguably contrary to legislative intent. What the plurality was really doing, according to the dissent, was using the significant overlap that would result from a broad reading of tangible object to show that such reading would render the statute at issue unnecessary. This doctrinal move performed a similar function to Bond’s assertion that state criminal law was sufficient to punish a defendant’s conduct. Both opinions used these judicial assertions to adopt narrowing constructions of their respective statutes.
After finding ambiguity,62The plurality also invoked two interpretative canons on its way to finding ambiguity, but the opinion does not apply them in a conventional way. Noscitur a sociis, “a word is known by the company it keeps,” is employed, as “any record [or] document” appears narrower than “tangible object.” Id. at 1085 (plurality opinion). However, a narrowing construction of the latter is unnecessary, as the terms can be interpreted consistently as different varieties of a federal investigation’s evidence. The plurality similarly invoked ejusdem generis, “[w]here general words follow specific words in a statutory enumeration, the general words are [usually] construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words,” id. at 1086 (quoting Wash. State Dept. of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003)), but, as Justice Alito pointed out, narrowing “tangible object” when the similarly broad “any record [or] document” precedes it was an “imperfect” use of the canon, to say the least. Id. at 1089 (Alito, J., concurring in the judgment). the plurality was able to rule for the defendant by invoking the rule of lenity, which dictates that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”63See id. at 1088 (plurality opinion). This doctrinal move—finding ambiguity through unusual means, then invoking an interpretative rule that automatically resolves that ambiguity in a particular direction—operated similarly in Bond, where ambiguity justified the Court’s invocation of the clear statement requirement.
Justice Alito’s opinion, concurring (as a decisive fifth vote) in the judgment, emphasized the “combined” effect of reading the “statute’s list of nouns, its list of verbs, and its title.”64Id. at 1089 (Alito, J., concurring in the judgment). His textual reading was strained, full of propositions like the following: “‘known unknowns’ should be similar to known knowns, . . . here, records and documents.”65Id. It is not apparent what was unknown: the statute says “tangible objects.” Justice Alito asked whether the reader would “raise an eyebrow” if asked whether a crocodile was similar to a record or document,66Id. suggesting the government’s position strayed far from common sense, and approached absurdity. Justice Alito’s use of an invented factual scenario to highlight the overbroad scope of the government’s proposed statutory reading finds company in Bond’s majority opinion: his crocodiles fulfill the same function as Justice Roberts’s parents-who-poison-goldfish.67Seesupra note 37 and accompanying text. Justice Alito was also “influenced by” the statute’s title, namely that it referred to “records,” instead of, presumably, a more expansive noun such as “tangible objects” or “evidence.”68Yates, 135 S. Ct. at 1090 (Alito, J., concurring in the judgment). Contrasting the statute’s title with the defendant’s conduct serves the same function as Bond’s repeated invocation of the treaty’s title, the statute’s name, and the grand internationalist ambitions motivating their enactment: the statute at issue was meant for bigger and better things than prosecuting small-timers. Thus a fish could not be a “tangible object” because, here, that term can include only “something similar to records or documents.”69Id. at 1089.
Justice Kagan’s dissenting opinion, joined by Justices Scalia, Kennedy, and Thomas, is convincing that “conventional tools of statutory construction” applied in a conventional way lead to an affirmance.70Id. at 1091 (Kagan, J., dissenting). In particular, the dissent’s affirmative case for adopting the plain meaning of “tangible object” was convincing: Justice Kagan detailed how the phrase is used in sundry statutes (federal and state) and procedural rules relating to evidence. See supra note 57. Same for the dissent’s criticisms of each of the plurality’s and concurrence’s doctrinal moves on the way to their findings of ambiguity. See supra notes 57-61 and accompanying text. Yet the result reached by the plurality and concurrence has a ring of justice to it. Targeting slightly nefarious fishermen is certainly not why the Sarbanes-Oxley Act was enacted; the same goes for the prosecution of an amateur harasser under the Chemical Weapons Convention Implementation Act. What, then? Part II explores whether there might be a way to reconcile the results reached by the Bond majority with those reached by the Yates plurality and concurrence through traditional statutory analysis, namely by coining a new substantive canon of construction, termed the overcriminalization canon. The Essay then proposes a constitutional basis for such a canon, which if accepted, would justify the holdings of Bond and Yates.
II. The Overcriminalization Canon
Substantive canons are “meant to reflect a judicially preferred policy position,” in contrast to content-neutral interpretive canons.71James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1, 13, 14 n.58 (2005). There are several substantive canons that impose extra burdens on Congress in certain circumstances, such as when lawmakers attempt to abrogate states’ Eleventh Amendment immunity or preempt state laws.72Id. at 14 (collecting cannons). Substantive canons represent the Court putting a finger on the scale of justice.
Attempting to synthesize the Court’s analyses in Bond and Yates raises two questions: Is there a new substantive canon of construction relating to overcriminalization in the works? And if so, is the creation of that new canon justified?
The answer to the first question appears to be yes, whether or not the Court admits it. Based on Bond and Yates, the overcriminalization canon applies when a defendant is charged under multiple criminal statutes, yet each appears to serve the same function as applied to the defendant’s conduct; there seems to be no need to accuse the defendant of multiple serious crimes. It imposes a not-quite-clear-statement-rule burden on the government,
In different ways, the three books provide exhilarating discursive journeys through the history of (largely) English criminal law, and its ideas, institutions, interests, contradictions and antinomies. Their socio-legal conceptualizations are grounded in juridical ratios and legal fictions by which criminal law criminalizes subjects in diverse contexts. Collectively, they point to criminal law’s fluid historical forms as responses to wider institutional, political and social forces, thereby highlighting changing forms of criminalization. The books diagnose from the present a massive expansion of criminal justice that overcriminalizes through, first, a resurgence of risk-based character attributions of criminal responsibility embedded in punitive control cultures that expand criminal law’s capacity to criminalize. Second, overcriminalization appears as a function of criminal law’s institutional shifts away from an earlier social purpose to secure civil order, resulting in a ‘new retributivism’ pursuing actuarially framed security. Finally, expansive criminalization surfaces as a contradictory offshoot of criminal law’s dialectical relation to authoritarian, neo-liberal political horizons. Such outcomes reflect significant contributions to debates on criminalization, despite their, at times, Delphic styles of presentation in pursuit of lexicons beyond those of analytic jurisprudence. The scholarly upshot is consequential, as they situate criminalization within complex, contradictory and never fully determined terrains of social history. They also recognize criminal law as contingently driven by changing social environments, and may even agree that its local determinations are framed through indeterminate promises of justice (see Fitzpatrick 2001). While the resulting irresolutions may be unpalatable to those seeking absolute certainty or narrow metaphysical closures, the three books demonstrate the sheer value of exploring criminal law’s criminalizing endeavours socio-legally.
That said, I wish to signal a disquiet with a seeming readiness to defer to criminal law’s ratios and decisions, even when exploring the social dimensions of criminalization (that part of Norrie’s book that ‘judges law’ notwithstanding). I will also propose that there is value to adding an accusatorial layer to socio-legal understandings of criminalization and overcriminalization. Before delving into these matters, though, I did wonder about the argumentative value of positioning their approaches against doctrinal and philosophical analyses of law, rather than say engaging more fully with critical work directed at the powers behind, and social costs of, overcriminalization (e.g., Alexander 2010; Wacquant 2009; Simon 2014). I grant that comparative concept sharpening may be useful, but it comes at a price. For instance, as noted, Lacey devotes part of a concluding chapter to drawing out implications for a rather indifferent ‘specific’ and ‘general’ jurisprudence. But the logic of her argument seems to invite more sustained reflections on, say, what a socio-legal framing of criminal responsibility might mean for politically resisting the socio-political forces behind overcriminalization. This is more than a banal call to engage concerns of, say, restorative, community, or transformative justice in search of alternatives to criminal justice (Zehr 2015), or even of abolitionists who seek to eradicate criminalization and punishment (e.g., Ruggiero 2010; Mathiesen 1974; Davis 2003)—though I think these might have made for less dismissive interlocutors. The point is rather that by presenting social histories of criminal responsibility and criminalization against the often-incommensurable assumptions of doctrinal and analytic jurisprudence, one skews the analysis too much as a response to the latter’s somewhat mordant criticisms of contingently orientated social theory. Regardless, this reader would have appreciated more systematic discussion of how socio-legal theory could intervene to erode overcriminalization and the authoritarian contexts that produce it.
Turning, however, to the first of my substantive concerns, even as the authors critically reflect on criminal law’s contingent foundations, they tend to privilege its ratios as building blocks for sociologically-orientated theories. Despite claims to the contrary, the texts mostly regard criminal law’s ratios as the basis for conceptualizing responsibility, civil order, and even dialectics. In other words, the social, political, institutional and ethical environments that supposedly drive law are mostly viewed through lenses that assume criminal law’s ratios and formulations of crime. For example, Farmer argues that the ‘history of criminal law begins only in the modern period’ (p. 63), and that criminalization was possible only after modern criminal law emerged as a unified institution. Thus, the ‘Making the Modern Criminal Law’ is portrayed as the basis of crime, and shifting institutions or techniques appear in his narrative in relation to that assumption. In other words, his discussion restricts institutional analysis to how specific institutions may be traced through legal notions of crime and responsibility—the latter are here defined by referencing case, ratio, statute or doctrinal analysis of criminal law. Such discourses may well dominate modern forms of criminalization, but this is less because of their internal integrity than the diverse legal and non-legal powers that enable that privilege in the first place.
The problem may be stated in another way. If criminal law both shapes and is shaped by surrounding social processes (institutional, interest-based, ethico-political) and its ‘patterns of responsibility’, and so are only relatively autonomous, then such processes are surely as invested in criminalization as lexicons of criminal law may be—a view that is there, without Procrustean ascription, in all three texts. But then one might wonder why the discussions of the social drivers of law are often subordinated to analyses that assume modern criminal law’s delineations of crime, responsibility, and its monopolistic claims to jurisdiction. Why is criminal law so frequently used as a prism through which to view underlying social processes, rather than the other way around, and with what consequences? Of course, this question recalls critical criminology’s early neo-Marxist, new left, and Frankfurt school arguments that criminal law’s definitions of crime ultimately serve bourgeois interests, thus perpetuating inherently unequal capitalist social forms (Taylor et al. 1975; Carson 1981; van Swaaningen 1997). To be sure, Lacey and Norrie are right to question neo-Marxist reductions of (ideas in) law to economics, but equally one might worry about restricting the analysis of social forces (that forge criminalization) to modern criminal law’s ratios and definitions. Accepting criminal law’s current hegemony narrows how we might envisage the diverse social forces that drive a cultural obsession with crime that, in turn, fuels overcriminalization. I think it is important to think further through the diverse social forces that generate the unequal populations upon which criminal law’s decisions unequally rest.
The law on ‘crime’ was defined in terms not of a hierarchy of offences but of the nature of the accusations that could be brought and the procedural and penal consequences of so doing for both accuser and accused. The Romans therefore did have a vocabulary for what might be termed ‘crime’ in a moral sense but there was no one word for ‘crime’ in Roman law. Instead, the procedure, through public accusation, served as a signal as to the nature of the offence. The ‘accuser’ asked the public, through its courts, to hold the accused to account. (Harries 2007, p. 5)
If this focuses our attention on the pre-legal, social processes of accusation that shaped Roman legal remedies, it also suggests a legacy that muddies modern, legal definitions of crime. Roman contexts remind us that social relations play a foundational, if overlooked, part in decisions on whether, how and which subjects to call to account as ‘criminals’. Accusatorial social processes lie at the source of criminalization in that they are centrally involved in decisions about what is to be socio-historically criminalized (Pavlich 2018). As such, accusatorial processes form social supports for what may or may not appear as crime; they also reflect social complex relations that make sense of given circumstances even before the law, or crime, appears as an option to pursue. To work off criminal law’s asserted claims to define all legitimate forms of criminality is to overlook this basic point. As the Roman example suggests, then, crime is a product of accusations that call people to account as potential criminals in law; but the auspices of that justice lie fundamentally in a longstanding lore (rather than law) of accusation that helps to initiate criminalization through socio-cultural processes (Pavlich 2006, 2009).
Working with the socio-legal dimensions of crime, then, seems to me to require more emphasis on social processes outside of criminal law’s stories of criminalization that so often justify their institutional expansion. Unduly privileging the legal fictions and institutions of criminal law may lead one to eclipse the power relations that initiate local accusations, and call persons to account as potential criminals in ways that reflect wider inequalities (i.e., based on, say, class, race and gender) (Alexander 2010). This is more than an ‘interference’ or incursion by socio-political relations; rather it is the very basis upon which criminal law’s later, abstracted, translation of social complexities rests. Thus, the unequal social dimensions of criminalizing processes form foundations for what subsequently appears as a unified, even autonomous, criminal law. As indicated by Norrie’s discussion of ‘just deserts in an unjust society’ problem (p. 16), criminal law is a ‘broken’, contradictory political reaction to the social inequity to which it is born. Such inequality exceeds what lexicons of criminal can define.
With this in mind, theories that approach social auspices through criminal law’s lenses tend to obscure the powers that shape criminal accusations outside of, and yet feed, criminal justice. For example, what is missed when we simply accept modern (English) criminal law’s claim to monopolize the framing of ‘crime’ can also be gleaned from its jurisdictional expansions over, for example, the late eighteenth-century Cape of Good Hope (Pavlich 2011). Here, the purposes of modern criminalization went beyond the civilizing missions to which Farmer refers; but, as importantly, criminal law used accusations of crime to stifle dissent, to entrench local gubernatorial power, and so to help define (not simply implement) the colonial sovereign’s capacity to inflict pain on those who overstepped its formulations of wrong (Pavlich 2013, 2011). This socio-political function may signal criminal law’s role in producing authoritarian sovereignty formations, and this might underlie its hegemonic claims to being the legitimate holder of what is to count as criminal. Regardless, the institutionalization of such purposes in colonial contexts points less to modern criminalization’s potential for limiting crime-creation by forging civil(ized) orders, and more to its dangerous ability to unleash massively expanding processes over more and more areas of society, with silencing effects over rival indigenous and other claims to criminal justice. It is in my view questionable to limit discussions of criminalization to the self-perceptions of the institutions that helped usher overcriminalization into historical being, and that sustain its expansive institutional forms. As I see it, social theory might instead focus directly on the socio-historical forces that mobilize criminal law to secure order, thus understanding more fully the sovereignty-forging politics that criminalization serves.
A similar call may be made with respect to ascriptions of criminal responsibility in this colonial context. Not long after occupying the Cape in 1795, the Commander Craig sent a letter to the judges of the Council of Justice requesting that they eliminate the ‘torture’ of blacks, by which he meant the practice of executing people of bondage (slaves) slowly and ruthlessly (Pavlich 2014). One can only imagine the horrific cries of pain that disturbed Craig, but in refusing his request, the judges offered a justification that different punishments were required for various ‘distinctions of person’ (e.g., ‘slave’, ‘Khoi’, ‘burgher’, company official). The judges held that each so-called stratum was—by its putatively varying characters (natures)—capable of being held to account criminally to different degrees; each was responsive to malleable intensities of punishment that could supposedly deter only when appropriately calibrated (note that ‘being held to account’ forms part of the etymology of the term ‘accusation’). The judges claimed thus to justify different kinds of responsibility and punishment for the diverse types of ‘persons’ imagined, seeking thereby to preserve perceived social hierarchies of the day. Their unequal attributions of criminal responsibility no doubt reflected foundations for an apartheid system to come, but did not simply flow from patterns of criminalization; rather the judges used crime-focused law as a pretext for extending their prior social prejudices, and for perpetuating a social hierarchy that braced their privilege. In my view, this reasoning confirms the value of Lacey’s search for social, political and economic bases for responsibility attribution, but it also suggests why one might engage them beyond Fletcher’s ‘patterns of criminalization’ recovered from modern criminal law. This colonial example indicates further that criminal responsibility attribution has roots beyond legal notions of capacity, character, outcome and revised risky characters—the very unequal idea of ‘distinctions of person’ served as a prior social canvas over which criminal law’s responsibilizing patterns were sketched. But my critique does not so much repudiate Lacey’s consequential arguments as point to unequal social layers beneath them. It also suggests possibilities for socio-legal analysis focused on how a social process—accusation—shapes the unequal overcriminalization of certain groups of people who populate prisons across the globe.
What to do about such overcriminalization is a complex matter that requires further thought. But as indicated, the reviewed texts could be said to conceptualize this issue as the result of criminalization that: (a) departs institutionally from criminal law’s purpose of creating civil order; (b) relies on a resurgence of character-based criminal responsibility around risk alongside notions of capacity, and outcome; and (c), accompanies authoritarian political forms that defer to crime as part of their ruling arsenal. Yet how precisely might one resist such overcriminalization? Norrie’s broad idea of a ‘broken dialectic’ offers possibilities for challenging an expanded criminal law in the name of justice that pursues freedom and solidarity through immanent critique, just as Farmer’s approach returns criminal law to civil order, and Lacey’s arguments presumably lead us to reverse criminal law’s character-based risk profiles. As important as such findings undoubtedly are, conceptualizing criminalization (overcriminalization and even decriminalization) through criminal law’s lenses limits discussions of a wider politics of criminalization. As Norrie suggests, the contradictory structural restraints faced by law internally (in its specificity) limits its potential to bring about socio-historical change. To be sure, the sheer dominance of criminal justice thinking, institutions and power may yield an obsession with controlling via notions of crime, making it difficult to think beyond legally framed languages. The texts clearly contribute to creating new languages to understand the terrain at hand; but other genres of critique refer us to the governing auspices of criminal law, and the politics that sustain its forms of criminalization (see Pavlich 2001). What politics could rescind a widespread, ruling reflex to border and order social formations through criminalization?
For such a political task, I do not think criminal justice institutions are likely to oversee their own consequential abolition. The thorny issue of overcriminalization has pushed me to a wider social view of how criminalization, over millennia, has been predicated upon prior notions of accusation. Indeed, the Latin crimen, from whence the term ‘crime’ derives, connoted judicial judgment but also the manner of ‘calling subjects to account’ (Pavlich 2006). The point is thus: rather than focussing discussions so closely on how law criminalizes, one might also focus attention on how socio-culturally formed accusations call subjects to account for actions that are contextually understood as potentially ‘criminal’. This focuses attention on the prior social processes of accusation that serve as gateways to criminal justice, and which preface criminal law’s subsequent decisions. From this vantage, reducing criminalization (to rescind overcriminalization) might require a turn to the politics of the socially framed accusations that funnel subjects into criminal law’s processes as legal persons.
The outlines for such an approach have been articulated elsewhere (e.g., Pavlich 2009; Pavlich and Unger 2017), but its basic idea is this: since processes of criminal accusation initiate criminalization, how they ‘call subjects to account’ for putative crimes shapes directly the vast, unequal and expanding criminal justice institutions that are thereby populated. The resulting overcriminalization referenced by all three books could be radically constrained by reducing the scope of social processes that accuse individuals of crime, thus resisting the political rationales and technologies that serve as social gateways to criminal law. The promise is precisely to reduce vast population flows into criminal justice institutions by constricting the socio-political source. To be sure this would require that we focus more attention on how to limit the number and historical kinds of subjects called to account as accused criminals, but it may also require us to reconsider the ideas and practices of accusation, upon which overcriminalization depends. For instance, the predominance of individually conceived accusations of crime could be framed anew by calling not individuals, but tension-filled social configurations, to account for their role in forging unequal patterns of criminalization and responsibility attribution. That way, processes of accusation could potentially be redirected to accusing unequal social forces behind what is criminalized, rather that replicating today’s emphasis on accusing individuals. This sort of social justice would likely pursue not civil order, but structures that enhance, rather than destroy, social attachments and the unequal social exclusions that so often follow individual forms of criminalization.
Though such differences may be matters of emphasis granted to criminal law, they are not meant to undermine the reviewed books’ significant, at times ground-breaking, achievements. They do, however, suggest an accusatorial layer that may augment socio-legal thinking around criminalization so luminously portrayed in these works. They left this reader with an optimistic impression that socio-legal analysis has marked out significant lines of socio-historical and theoretical inquiry into the complexities of criminalization, and made inroads into redressing the excruciating overcriminalization of our times. Whether such an endeavour is to be tackled before or through criminal law, or both, serves as a sincere recommendation to read these three resplendent texts.