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Recreational drug users (other than those who take harmful
substances like alcohol and tobacco) are regularly imprisoned.
Nearly half a million drug offenders are incarcerated in US jails,
more than the total number of prisoners in 1980 and more than the
entire EU prison population. In some states more is spent on
maintaining the prison system than on education. Current drug
policies lead to immense personal suffering, as well as police
corruption, organized crime and contempt for the law, and make
drugs more dangerous because they are illegal and thus not subject
to proper controls. Politicians from all sides of the political
spectrum are beginning to ask: is it worth it?
This book argues that ignorance of law should usually be a complete excuse from criminal liability. It defends this conclusion by invoking two presumptions: first, the content of criminal law should conform to morality; second, mistakes of fact and mistakes of law should be treated symmetrically. The author grounds his position in an underlying theory of moral and criminal responsibility according to which blameworthiness consists in a defective response to the moral reasons one has. Since persons cannot be faulted for failing to respond to reasons for criminal liability they do not believe they have, then ignorance should almost always excuse. But persons are somewhat responsible for their wrongs when their mistakes of law are reckless, that is, when they consciously disregard a substantial and unjustifiable risk that their conduct might be wrong. This book illustrates this with examples and critiques the arguments to the contrary offered by criminal theorists and moral philosophers. It assesses the real-world implications for the U.S. system of criminal justice. The author describes connections between the problem of ignorance of law and other topics in moral and legal theory.
In the US, one out of every 138 residents is incarcerated. The size
of the prison population has quadrupled since 1980. Approximately
2.4% of Americans are either on probation and parole. The US has
the highest rate of criminal punishment in the Western world. The
problem with American criminal law, as the philosopher of law
Douglas Husak and many others see it, is that there is simply too
much of it. Recent years have seen a dramatic expansion in the
amount of criminal statutes, and in the resulting reliance on
punishment for convictions under those laws. Husak argues that this
is regrettable for several reasons, but most importantly, he says
that much of the resulting punishment is unjust, excessive, and
disproportionate. He also claims that it is destructive to the rule
of law and undermines the principle of legality. What should be
done?
The United States today suffers from too much criminal law and too much punishment. Husak describes the phenomena in some detail and explores their relation, and why these trends produce massive injustice. His primary goal is to defend a set of constraints that limit the authority of states to enact and enforce penal offenses. The book urges the weight and relevance of this topic in the real world, and notes that most Anglo-American legal philosophers have neglected it. Husak's secondary goal is to situate this endeavor in criminal theory as traditionally construed. He argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself-even though these resources have not been used explicitly for this purpose. Additional constraints emerge from a political view about the conditions under which important rights such as the right implicated by punishment-may be infringed. When conjoined, these constraints produce what Husak calls a minimalist theory of criminal liability. Husak applies these constraints to a handful of examples-most notably, to the justifiability of drug proscriptions.
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