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The United States suffers from too much criminal law and too much punishment. These two trends conspire to produce massive injustice. To rectify this injustice, we need to defend and implement a theory of criminalization: a set of constraints that limit the authority of states to enact and enforce penal offenses. Although the topic of criminalization is of enormous theoretical and practical significance, no Anglo–American theorist has yet developed such a theory. The central objective of this book is to defend a theory of criminalization, and to situate it within contemporary scholarship by legal philosophers. 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. Several additional constraints emerge from a political view about the conditions under which important rights—such as the rights implicated by punishment—may be infringed. When conjoined, these constraints generate a minimalist theory of criminal liability. These constraints are applied to a handful of examples—most notably but not exclusively to drug proscriptions, which are the most significant cause of the growth in the criminal justice system. This book concludes by showing that the minimalist theory defended here is vastly superior to any of the competitive accounts of criminalization that legal philosophers have produced.

I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).

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I attempt to understand and assess the widespread belief that addiction is relevant to morality. I examine several accounts of how addiction might be significant from a moral point of view. Although I briefly discuss theories of virtue, I focus on three possible ways addiction might be relevant to moral blame. First, blame might be imposed for the act of using addictive drugs. Second, blame might be imposed for the condition of being addicted. Third, blame might be imposed for further risks persons are likely to undertake once they have become addicts. I conclude that each of these accounts has some plausibility, but none is entirely unproblematic. Addiction probably is relevant to morality, although its degree of importance is not as great as some commentators appear to believe. The moral relevance of addiction does not appear to rise to whatever level would justify a punitive response to addictive drug users.