In this paper I will be explaining Douglas Husak and Antony Duff’s positions on what conditions make it appropriate to criminalize “hybrid” offences by drawing on Husak’s text, Overcriminalization. In the first section of this paper, I will discuss Husak’s view on when it’s appropriate to criminalize hybrid offences by further discussing his criminalization theory. In the second section of this paper, I will discuss Duff’s view on when it’s appropriate to criminalize hybrid offences by drawing on specific examples he provides pertaining to crimes of endangerment. In the third section of this paper, I combine both Husak and Duff’s arguments in order to further develop a comparison between both views, all while addressing any refutations towards each other’s views. Finally, in the fourth section of this paper, I will draw on my own personal views and conclude which position in this dispute is the most correct.
By focusing on Husak’s criminalization theory, this section will help to address what conditions makes it appropriate to criminalize “hybrid” offences. Husak’s views are constantly building upon this theory in an attempt to narrow his focus on overlapping offences, crimes of risk prevention, and ancillary offences. For starters, Husak believes that if an act brings about harm or creates risk to others, then this is grounds to criminalize a hybrid offence. Given this, Husak argues that not all offences cause harm and should not be criminalized. For instance, victimless crimes, such as unlawful sexual behaviour, specifically public sex, is an offence where no one is directly or indirectly creating harm or risk to themselves or others. More broadly speaking, Husak believes that something is wrong and unjust about the legislative process, such that we should narrow our focus on the state rather, and advocate for a theory of criminalization in order to stop the vast growth of unjust overcriminalization. A key focus Husak implements in his arguments is the notion that the criminalization of “hybrid” offences must be just, otherwise a free society no longer exists, and the rule of law is broken.
On the other hand, Husak believes that it is appropriate to criminalize “hybrid” offences if there is; a principle of proportionality, the severity of the punishment is equivalent to the seriousness of the crime, sentencing discretion is removed from judges, and similar crimes receive comparable sentences (Husak 28). To also upkeep order, and maintain a just society, Husak suggests that criminalizing hybrid offences is only appropriate if the authorities themselves are held to the same accountability as its citizens. More specifically, Husak believes that authorities should be held to a standard in which they themselves need to defend their decisions for enacting a certain statute, and if they cannot do so, then authorities should not be given the discretion they have today (Husak 33). More so along these lines, Husak argues that it’s appropriate to criminalize hybrid offences once we’re certain that these general types of offences cannot be called into doubt (Husak 37), and as long as there are no threats posed upon the offender with such things as severe punishments, or offering unreasonable and unjust plea bargains.
By focusing on crimes of endangerment, Duff draws on the distinctions between consummate/non-consummate endangerment offences, direct/indirect offences of risk prevention, and explicit/implicit offences of risk prevention to further develop what conditions justify criminalizing hybrid offences. Moreover, Husak believes that there are certain offences that create harm, but is either directly or indirectly caused, and he further develops this distinction using the majoritarian condition, and the civic arrogance notion he develops. For starters, Duff supports this notion of indirect offences of risk prevention, by using the concept majoritarian condition reinterpreted by Husak. Specifically, Duff argues that the majority who commits hybrid offences should be criminalized, because this majority is ultimately guilty of mala in se offences and should therefore be punished for their wrongful acts. Likewise, Husak believes that with the use of civic arrogance, the offender is also enacting direct offences of risk prevention, because ultimately the offender sets himself above everyone else to commit a hybrid offence.
Duff also spends a great amount of his account explaining his views on mala in se offences. For instance, Duff uses the example of underage sex, explaining that one’s level of maturity represents their capability to make rational decisions, and this is something he deems as something that should be subjective. Similarly, Duff uses the example of driving under the influence to refer to one’s level of impairment as something that should also be subjective, such that he believes the agent should decide the limitation to their own impairment. With the use of these mala in se offences, Duff believes that these offences should be left to the discretion of the individual, and therefore subjective acts of offence should not be criminalized for hybrid offences.
To further explain Duff’s views, I intend to draw comparisons between both Duff and Husak’s claim by raising distinctions and refutations towards Duff’s account in order to better understand their differing views. As previously mentioned, Duff believes that punishment is justified due to an offender’s civic arrogance. Specifically, Duff argues that one’s civic arrogance is not to be trusted, nor should one be treated as an exception to the rule of law. In response to this, Husak believes that although one’s action might display civic arrogance, this is still not enough grounds to justify why one should be punished and criminalized, especially for hybrid offences, because rightfully, these offences are not wholly mala in se, or mala prohibita.
Despite Duff’s claims, Husak believes there is more to question when considering civic arrogance, and he believes this is not enough justification to criminalize hybrid offences, simply because one’s one should be punished for their actions solely and not their attitude. As for Duff’s majoritarian condition, Husak disagrees with this, and believes that no proper justification can be generated to criminalize hybrid offences solely on the majority of agents being guilty. Further, Husak believes that not everyone who commits hybrid offences are guilty of both mala prohibita and mala in se offences. Moreover, Husak believes that punishment for hybrid offences should be something that incorporates onus of the individual and personal wrongdoing. This way, we can decipher between punishing the innocent and punishing the guilty.
Given these distinctions between both Husak and Duff’s views, I believe Husak’s position and justifications offered is sound in comparison to Duff’s. I agree with Husak that it is only appropriate to criminalize a hybrid offence once we are certain that the offence has both aspects of mala in se and mala prohibita. I also like the notion that Husak is capable of questioning his stance numerous times by considering ways in which solutions can be offered to benefit all. I also would have liked to see a stronger justification for punishing those who commit a vast majority of mala prohibita offences from Duff. Further, I disagree with Duff’s position of using civil arrogance as grounds to criminalize hybrid offences, and therefore punish offenders. I believe Duff fails to explain how mala prohibita offences could be justified, and I believe most of his account solely focuses on crimes that’s not fully mala prohibita nor fully mala in se.
With Duff’s examples of mala in se offences, specifically his examples of subjectivity pertaining to one’s level of intoxication, and one’s ability to consent to sex, I also oppose this view. Rather, I believe Husak’s position is better, because Husak takes a stance against Duff’s examples of subjectivity, and states that these are also mala prohibita offences, and therefore not entirely mala in se offences. Given this, I agree with Husak’s notion of using a better term, such as hybrid offences, because hybrid offences are great representations when it comes to such cases as level of intoxication and giving consent. I also disagree with Duff’s position, because he seems to be a consequentialist, such that he truly believes that one’s punishment is solely based on whether the offender is deserving of such punishment.
For this reason, I think Husak’s position stands more ground, because Husak disagrees with one’s punishment being something that originates from desert, but rather tries to introduce ways in which one’s punishment being based off of desert can lead to overcriminalization and unjust punishment. I also agree with Husak’s position that it is appropriate to criminalize such hybrid offences such as underage sex and driving under the influence, because in such cases it’s wrongful to assume one’s maturity level, and one’s capabilities under the influence, in which Duff fails to address.
In conclusion, Husak provides a great balance of an argument for when it’s appropriate to criminalize hybrid offences, all while keeping in mind how the state over criminalizes. All in all, Husak argues that in order to minimize criminal law, we need to also lower the amount of mala prohibita offences being criminalize and this is shown through his analysis and response to aspects of Duff’s argument as well.