Proxy Crimes and Overcriminalization

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.