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OvercriminalizationThe Limits of the Criminal Law$
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Douglas Husak

Print publication date: 2007

Print ISBN-13: 9780195328714

Published to Oxford Scholarship Online: January 2008

DOI: 10.1093/acprof:oso/9780195328714.001.0001

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External Constraints on Criminalization

External Constraints on Criminalization

(p.120) 3 External Constraints on Criminalization

Douglas Husak (Contributor Webpage)

Oxford University Press

The internal constraints introduced in chapter two are supplemented by three external constraints derived from a political account of the conditions under which the state may infringe the important rights implicated by punishment: a criminal offense is unjustified unless the government has a substantial interest in enacting it; the statute must directly advance the government's purpose; and the law must be no more extensive than necessary to achieve its objective. These three constraints are defended, embellished, and applied to a handful of controversial examples, including laws designed to serve expressive functions, statutes with a paternalistic rationale, and drug and gun controls. To implement these constraints effectively, legal philosophers need an analysis of public wrongs, empirical data, and a theory of the objectives the state may legitimately pursue. The final section argues that many crimes designed to prevent risk will fail to satisfy these constraints, largely because they are overinclusive.

Keywords:   public wrongs, substantial state interest, overinclusive, expressive, paternalism, gun controls

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