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Abstract: Use of force and criminalization are typically understood as distinct concepts. Use of force theory governs police officers’ legitimate use of violence. Criminalization theory, on the other hand, concerns the State’s power to censure and sanction the most wrongful conduct. According to this account, use of force and criminalization are fundamentally different and share little theoretical and practical relation to one another.
But this picture is wrong; criminalization is all about use of force. Actual or threatened force underpins each part of the criminal justice process, from policing, to plea bargaining, to punishment – all of which trace back to criminalization. Police officers can use physical force to detain, search, and arrest individuals – including factually innocent ones – to investigate and repress crimes. Plea bargaining – which resolves most criminal charges – is often backed by a different threat of force: longer prison sentences if defendants go to trial. Punishment empowers correction officers to confine, isolate, and search individuals invasively, while imprisonment exposes them to potential violence by other inmates. Once we see the connection between use of force and criminalization, we cannot unsee it.
This article advances a theory about this connection. It argues that the two limiting principles that justify use of force – necessity and reasonableness – should equally apply to justify criminalization. Use of force is presumptively wrong because it limits individuals’ freedom, autonomy, and dignity without consent. Yet police use of force can be justified to neutralize an individual’s unlawful, dangerous, or non-compliant behavior without constituting a public or private wrong, such as the crime of assault or the tort of battery. Given its inextricable connection to use of force, criminalization is also a presumptive wrong that is exacerbated by the inevitability of over-criminalization and the criminal law’s enforcement against innocent persons. However, like use of force, criminalization can be justified when it is necessary and reasonable. The concluding parts of this article show why two mechanisms – law reform commissions and sentencing commissions and guidelines – can better ensure that the State enacts crimes that respect these limiting principles. These mechanisms mitigate lawmakers’ incentives to over-criminalize conduct, address judges’ inability to engage in proactive constitutional review, and help ensure that the State respects its moral duty to prevent needless harm to individuals.
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