This post is about 1000 words and can be read in 5 minutes.

One of the major problems in criminal law that rarely gets enough attention is the question of what should count as a crime in the first place.  One of the first posts on this blog was about the problem of overcriminalization – of turning too many things into crimes, creating more harm than good.

Criminal law is a huge improvement on a world in which people could be punished for whatever the powerful wanted.  However, though we like to think that our laws are the product of careful consideration based on sound principles, the reality is very different from that.  And the result is that criminal law, in Canada and elsewhere, is in many ways incoherent, inconsistent and arbitrary.

Most writers on this issue (for a very interesting if rather academic discussion of this whole question, see Douglas Husak, Overcriminalization) take the view that actions are made criminal for one of two reasons – either because they cause some significant harm, or because many people regard them as wrong or immoral.  These are clearly two different rationales.  But in practice many things that cause significant harm are not crimes, and many things that most people disapprove of are also not crimes, so neither of these rationales provides a convincing explanation.

Not all harms are crimes

Consider the question of harm.  Many crimes, such as theft or assault, are concerned with harm.  But many things that are harmful are not criminal, and quite a few things that are criminal are not harmful, or at least not very harmful.  Consider the ownership of a company that runs the organization into the ground in order to generate short-term profits, leading to the collapse of the company.  Many people lose their jobs and their pensions, creating a significant harm.  But this behaviour is only criminal if it involves fraud.

Then there are laws that are designed to prevent harm from occurring, such as laws against drunk driving or mandatory reporting of suspected child abuse.  But here, too, it seems quite inconsistent to make failures to prevent harm criminal while many other similar things are not.  Driving while drunk is an offense whether or not you injure anyone, but other kinds of impaired driving are generally only criminal if there is an injury.  There is no law requiring you to report someone who is at serious risk of a heart attack, or to report a negligent or illegal business activity, or indeed to report someone who you believe is very likely to commit a crime.  So why have we chosen to make some acts related to risk prevention criminal while most are not?

We criminalize some things because we don’t like them

Now consider immorality.  Some crimes are things which do not produce much if any harm but which many people disapprove of.  Drug possession is one good example.  Pornography laws would be another. Some would argue that these activities do produce significant harm, but the evidence on these points is far from clear, and in any case it is hard to argue that these are more harmful than many other actions which are not criminal – such as smoking or using alcohol or lying or infidelity.  There is no rhyme or reason as to why some kinds of disliked behaviour are criminal and most kinds are not.

A further indicator of the incoherence of criminal law lies in differences over time and from place to place.  Things that used to be legal – such as slavery or domestic violence or hitting children – are now illegal, while other things that used to be illegal – such as homosexuality, or abortion, or using birth control – are now legal.  The only thing that has changed is how people feel about these issues.

Some laws are enforced more than others

Finally, there is the issue of indifferent enforcement.  Some laws are enforced stringently, and others hardly at all.  Indeed, the Criminal Code still contains many criminal prohibitions that are never enforced any more even though they are still on the books.  Examples include vagrancy, duelling and witchcraft.  But even for laws that are still widely accepted, some of them are enforced strictly and others much less so.  Everyone knows that your chances of being apprehended for many offenses, such as drunk driving or use if illegal drugs, are very small.  Sometimes we prosecute those crimes that are easy to prove instead of those that are hard.  For example, we charge people for drug possession because it is very hard to find the people who really run the drug trade.  Many more people are now prosecuted for child pornography offenses in Canada than are prosecuted for the hands-on abuse of children, even though the latter is clearly a much more serious offence and is quite widespread.  It is also more difficult to find and prosecute.

Why so many crimes?

In reality, criminal law is not the result of a careful and coherent approach but mainly the product of short-term politics.  Some dramatic event takes place, or some pattern of bad behaviour is exposed.  People are upset, angry, fearful, ‘outraged’ (to use the new favourite word).  Politicians are put under pressure to ‘do something’, and that something is often to make a law criminalizing the activity.  After all, it is much easier to pass a new law than to address the real problems leading to wrong behaviour.  We can then all feel as if we have done something and our consciences are assuaged, even if no actual improvement in human welfare follows.

This use of criminal law to address some perceived problem happens even when the activity was already a crime – for example the current concern with creating new crimes related to human trafficking, which was already illegal.  A great deal of ‘tough on crime’ rhetoric is of this variety, making the false claim that passing a law against something or making the penalties stronger will lead to less of it happening.  But drug laws have not led to less use of drugs; and stiffer sentences generally do not result in less crime.

More criminal law is not the answer

There is no easy solution to this problem.  Law is a human activity, so like every human activity it will inevitably be full of contradictions, gaps, and inconsistencies.  It will never do all that it claims and in some cases it will produce more harm than good.  That is not a reason to despair, but it is a reason to resolve to do better, and in particular to be less susceptible to calls for new criminal laws.