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Proxy Crimes and Overcriminalization

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Abstract

A solution to the problem of “overcriminalization” appears to be decriminalization of certain crimes. This Essay focuses on a group of crimes that has been labeled “proxy crimes” as a candidate to be eliminated. What are proxy crimes? Douglas Husak defines them as “offenses designed to achieve a purpose other than to prevent the conduct they explicitly proscribe.” Michael Moore describes them as involving situations where we “use one morally innocuous act as a proxy for another, morally wrongful act or mental state.” Put that way, proxy crimes seem highly problematic, and Larry Alexander and Kimberly Ferzan bluntly put it, “We reject proxy crimes.” This Essay asks whether we should reject proxy crimes by presenting and evaluating Alexander and Ferzan’s treatment of the subject. After describing several different types of crimes that may be characterized as proxy crimes and Alexander and Ferzan’s rejection of most of them and their arguments for doing so, this Essay argues that their rejection of proxy crimes is incomplete, which leaves their theory open to a range of possibilities regarding the proper place of proxy crimes in criminal law. This Essay concludes that getting a handle on the problem of proxy crimes and overcriminalization requires a theory of the state and an articulation of the proper relationship between the state and its citizens that can give guidance on when the state can demand obedience from citizens to support the state and when failures to comply with such demands render one criminally culpable. Without such a theory, proposals to address overcriminalization cannot travel very far.

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Notes

  1. Douglas Husak, “Drug Proscriptions as Proxy Crimes”, Law and Philosophy 36 (2017): pp. 345–66.

  2. Michael Moore, Placing Blame: A General Theory of the Criminal Law (Oxford and New York: Oxford University Press, 1997), p. 783.

  3. Ibid., p. 784.

  4. Larry Alexander and Kimberly Kessler Ferzan, Reflections on Crime and Culpability: Problems and Puzzles (New York: Cambridge University Press, 2018), p. 8; see also ibid., p. 12 (“We are generally opposed to proxy crimes.”).

  5. Some contributions are: 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; Stuart Green, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime (New York: Oxford University Press, 2006); Andrew Cornford, “Preventive Criminalization”, New Criminal Law Review 18(1) (2015): pp. 1–34; Victor Tadros, Wrongs and Crimes (New York: Oxford University Press, 2016), pp. 329–32; R.A. Duff, The Realm of Criminal Law (Oxford: Oxford University Press, 2018), pp. 313–32.

  6. Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (New York: Cambridge University Press, 2009).

  7. Alexander and Ferzan, Reflections on Crime and Culpability.

  8. Ibid., p. 83.

  9. Alexander and Ferzan, Crime and Culpability, p. 289.

  10. Alexander and Ferzan, Reflections on Crime and Culpability, p. 83; Alexander and Ferzan, Crime and Culpability, p. 309.

  11. Alexander and Ferzan, Reflections on Crime and Culpability, pp. 83–84.

  12. Alexander and Ferzan call such offenses “preemptive crimes.” Alexander and Ferzan, Reflections on Crime and Culpability, p. 84 n.2; Alexander and Ferzan, Crime and Culpability, pp. 309–10. Husak calls them “offenses of risk prevention.” Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008), p. 38.

  13. Morissette v. United States, 342 U.S. 246 (1952); 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. 862–83.

  14. See, e.g., 31 USC s. 5322; 15 USC s. 80b-17; 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): 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.”).

  15. 16 USC s. 1533 (making it unlawful for anyone to “violate any regulation pertaining... to any threatened species of fish or wildlife listed pursuant to” the law that authorizes the Secretary of Interior to designate a species as an endangered or threatened species).

  16. 15 USC s. 80b-3 (“[I]t shall be unlawful for any investment adviser, unless registered under this section,... to make use of the mails or any means or instrumentality of interstate commerce in connection with his or its business as an investment adviser.”); 15 USC s. 80b-2 (“‘Investment adviser’ means any person who, for compensation, engages in the business of advising others... as to the advisability of investing in, purchasing, or selling securities....”); 15 USC s. 80b-17 (“Any person who willfully violates any provision of this subchapter, or any rule, regulation, or order promulgated by [the Securities and Exchange] Commission under authority thereof, shall, upon conviction, be fined not more than $10,000, imprisoned for not more than five years, or both.”).

  17. 18 USC s. 1957 (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. See, e.g., 31 USC. s. 5316(a); 31 USC s. 5316(b) (1986); 31 USC s. 5322 (2001); see also United States v. Bajakajian, 524 U.S. 321 (1998).

  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 Journal 1986 (1986): pp. 520–21.

  20. See generally A.P. Simester (ed.), Appraising Strict Liability (New York: Oxford University Press, 2005).

  21. Cf. Frederick Schauer, “On the Nature of the Nature of Law”, Archives for Philosophy of Law and Social Philosophy 98(4) (2012): pp. 457–67.

  22. Alexander and Ferzan, Reflections on Crime and Culpability, p. 8.

  23. Ibid., pp. 83–84; see also Alexander and Ferzan, Crime and Culpability, pp. 309–10.

  24. Alexander and Ferzan, Reflections on Crime and Culpability, p. 83.

  25. Alexander and Ferzan, Crime and Culpability, p. 310.

  26. Ibid., pp. 310–11 (emphasis in original).

  27. Alexander and Ferzan, Reflections on Crime and Culpability, p. 84 n.2.

  28. Ibid. p. 89 n. 9.

  29. Alexander and Ferzan, Crime and Culpability, p. 310.

  30. Ibid., p. 289.

  31. Alexander and Ferzan, Reflections on Crime and Culpability, p. 85.

  32. Ibid., p. 17.

  33. Alexander and Ferzan, Crime and Culpability, p. 310; Alexander and Ferzan, Reflections on Crime and Culpability, pp. 83–84.

  34. Alexander and Ferzan, Crime and Culpability, p. 311; see also Alexander and Ferzan, Reflections on Crime and Culpability, pp. 85 & 85 n.5.

  35. Alexander and Ferzan, Crime and Culpability, p. 311.

  36. Ibid.

  37. Ibid. (italics added for emphasis).

  38. Ibid., p. 313.

  39. Alexander and Ferzan, Reflections on Crime and Culpability, p. 86.

  40. Ibid.

  41. Alexander and Ferzan, Crime and Culpability, p. 312.

  42. Ibid.

  43. Ibid., p. 313.

  44. On punishing disobedience as conduct or attitude, see Youngjae Lee, “Recidivism as Omission: A Relational Account”, Texas Law Review 87(3) (2008), pp. 595–96.

  45. Alexander and Ferzan, Reflections on Crime and Culpability, pp. 17–65.

  46. Ibid., p. 85.

  47. These are adopted from Alexander and Ferzan’s example of gun possession in their discussion of risking other people’s riskings. Ibid., p. 49.

  48. Ibid., p. 85 (emphasis added).

  49. Ibid., p. 87.

  50. Ibid., p. 50.

  51. Ibid., p. 86.

  52. Alexander and Ferzan, Reflections on Crime and Culpability, p. 83.

  53. Alexander and Ferzan, Crime and Culpability, p. 269.

  54. Ibid.

  55. Alexander and Ferzan, Reflections on Crime and Culpability, p. 58.

  56. Ibid., p. 59.

  57. Ibid.

  58. Ibid. Though Alexander and Ferzan use the term “agreement” here, it does not seem that they mean to be invoking a contractual obligation given that the source of the prohibition they are discussing is not a contract or a promise but a law. There is an extensive literature on the relationship between free-riding and political obligation. For a discussion, see Youngjae Lee, “Punishing Disloyalty? Treason, Espionage, and the Transgression of Political Boundaries”, Law and Philosophy 31(3) (2012): pp. 319–20.

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

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

  61. Alexander and Ferzan, Crime and Culpability, p. 281.

  62. For a recent discussion, see Andrew Ashworth, Positive Obligations in Criminal Law (Oxford and Portland, Oregon: Hart Publishing, 2013), ch. 4.

  63. Alexander and Ferzan, Reflections on Crime and Culpability, p. 66.

  64. Ibid., p. 68.

  65. Ibid., p. 68 n.11.

  66. Ibid.

  67. Alexander and Ferzan, Crime and Culpability, p. 316.

  68. Ibid.

  69. Ibid., p. 270.

  70. Ibid., p. 316.

  71. Ibid., p. 281.

  72. Alexander and Ferzan, Reflections on Crime and Culpability, p. 87 (emphasis added).

  73. Accordingly, they also acknowledge “the category of reckless but not knowing violators” as potentially culpable, albeit “less culpable than a knowing scofflaw.” Ibid., p. 85 n.5.

  74. See, e.g., 22 USC s. 2778(c); 50 USC s. 1704(c); see also Lazarus, “Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law”, pp. 2448–50, 2454, 2468–71.

  75. 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.”); ibid., pp. 70–71.

Acknowledgements

Thanks to Susu Zhao for research and editorial assistance.

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    Youngjae Lee

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Lee, Y. Proxy Crimes and Overcriminalization. Criminal Law, Philosophy 16, 469–484 (2022). https://doi.org/10.1007/s11572-021-09575-8

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