Reply: Criminal Law’s Pathology

I thank Kyron Huigens for devoting his time and his considerable talent to responding to my article, The Pathological Politics of Criminal Law. I also thank editors of the Michigan Law Review for giving me the opportunity to reply. It is best to begin by defining the contested territory. Huigens and I agree (I think) on three propositions. First, American criminal law, both federal and state, is very broad; it covers a great deal more conduct than most people would expect. Second, American criminal law is very deep: that which it criminalizes, it criminalizes repeatedly, so that a single incident can yield a dozen or more separate charges. Third, because criminal law has these features, a great many defendants plead guilty who might win at trial given more reasonable criminal liability rules, and a smaller but still significant number of defendants lose the opportunity to raise substantive legal claims they could have raised if those more reasonable rules applied. These effects give prosecutors an enormous amount of power. All this is common ground. We disagree about two important things. Huigens believes that the nature of criminal law and criminal lawmaking may not be a large problem – overcriminalization may be no more than a “benign” response to the public’s desire to use criminal law to make symbolic statements. And he believes that if there is a problem, it lies in the triumph of consequentialism as the reigning theory of criminal punishment. Both points are, like all Huigens’ work, very interesting; I enjoyed and profited from his essay. And the argument about consequentialism has substantial force. But I think neither point is correct.