We met with Dr. Douglas Husak to discuss his book Overcriminalization, problems with the criminal justice system, police and prosecutors’ bias in choosing who gets arrested, and much more. Enjoy!
Dr. Douglas Husak explains the ability of law enforcers to choose whom they prosecute or charge for a crime. While the majority of Americans have committed a crime that could land them in jail, few are ever actually charged. Since law enforcement must be selective about whom they prosecute, it can lead to problems if prosecutors carry their biases over to who they choose to charge for crimes.
Husak, Philosopher of Criminal Law at Rutgers University, wrote a book called Overcriminalization: The Limits of the Criminal Law which discusses this challenge. He explains how the wide scope of criminal laws in the United States can affect both citizens and law enforcement as well as the potential solutions to these issues. While most laws are not broken by accident, Husak argues that the majority of Americans who have committed crimes, even knowingly, do not deserve to be in jail. There have been a series of criminal justice reforms in the past several years that look at some of these problems and Husak expects this trend to continue. Student Karina Macosko and Tim Smith talk with Douglas Husak about how this applies to the general population who commit crimes and yet should not be put in jail.
Find out more about Douglas Husak, and check out our criminal justice resources if you are interested in learning more about this extensive field.
(Editor’s Note: The following transcript has been lightly edited to improve clarity.)
Karina: Hi, my name is Karina Macosko.
Tim: My name is Tim Smith.
Karina: And we are from Academic Influence, and today we are here with Professor Husak. And we are just fascinated by your career, and especially your book, you wrote a book on over criminalization in the United States. And so just starting off, we wanna hear what was the initial inspiration for this book and how did you kind of get into a career in criminology?
Douglas Husak: Well, I am a philosopher actually, and a philosopher of law more narrowly, and even more narrowly, a philosopher of criminal law. And I got a PhD in Philosophy and a Law degree, and was doing very traditional sorts of work in Philosophy, and I read... I read a lot, I like to think, read a very influential book. It was a book by George Fletcher called Rethinking Criminal Law. It’s a classic. And after reading it I thought, this is a book about a set of issues I would like to specialize in. And it was a very fortuitous occasion for me, because the philosophy of criminal law is, or at the time, was a very undeveloped specialty. So there wasn’t a whole lot of work done in it, and it was relatively easy to make a contribution. I mean if you’re specializing as a philosopher in Plato or Aristotle, where there’s a whole lot less that’s new to be said. But in thinking philosophically about the criminal law, there were a lot of issues that hadn’t been addressed, and so it was a very good career choice for me.
Tim: Great, could you describe the creative process of writing your book, Overcriminalization?
Douglas Husak: 0:02:06.4 DH: The creative process. Well, of course, you think about issues for a very long time, and I typically have files where I throw ideas over the course of years. And when I finally thought about writing a book on that set of ideas, there was a lot already there that gave me a pretty good start, because I think the hardest thing in any project is beginning. So it’s nice to have a file to turn to, and it doesn’t feel as though you’re beginning from scratch.
Karina: Wow, yeah, and kind of diving deep into what this book is about, Overcriminalization, we were discussing the sheer number of laws that you talked about. And I don’t think a lot of people realize this, I certainly didn’t, just how many laws there is that you have to follow. And I think you said something like, 70% of Americans have committed a crime that they could go to jail for. And obviously, 70% of Americans are not in jail. So can you just kind of talk about... What was that one law in New York, about 20... You can’t have 20 ounces of soda. So can you kinda talk about just the sheer number of laws, and how people can be expected to follow all of these when they don’t even know that some of them exist?
Douglas Husak: Right. Referring to the number of criminal laws, that’s a perfectly natural way to think about the issue, but it’s really hard to actually individuate criminal laws and specify how many there are. In fact, no one is confident that they have an estimate of how many criminal laws actually exist for any number of reasons, but what’s really worrisome, I think, is the scope of criminal liability and how easy it is to run a foul of the criminal law. You mentioned how many, what percentage of Americans have committed relatively serious crimes. Driving offenses, shoplifting, drug offenses, those are the... Internet piracy, those are the most common kinds of offenses that the ordinary law-abiding American is guilty of. And what spares those of us who have committed those crimes from prosecution is simply discretion on the part of criminal justice officials.
They couldn’t possibly prosecute everyone who commits crimes, so they’re very selective in who they go after. And in some ways that’s a virtue of the criminal justice system, and in other ways, it’s a vice. It gives a ton of power to prosecutors to really decide what laws to enforce. And so you tend to think of the real power makers as legislators who draft laws, but I think it’s police and prosecutors who have a whole lot more power in the real world because they’re the ones who really decide who gets in trouble.
Tim: Great, how do you think we educate Americans to combat these hidden laws that are sown into various statues and federal codes?
Douglas Husak: Well, some of them aren’t exactly hidden. I think everyone knows that given drug offenses are against the law. No one would think shoplifting is allowed. People are pretty aware there are laws against drunk driving and other kind of motor vehicle offenses. People are pretty aware of what they’re allowed to do with respect to internet downloading, maybe that’s a little more amorphous. So it’s not as though these are really hidden. They are there in public view, and there are laws, of course, that are not very well known, but they I think are not so much the problem. It’s not that these laws are unknown to people, the problem instead is that prosecutors have the discretion to decide who to go after and who not to go after. And that can be worrisome.
You want good prosecutors, you want prosecutors who actually pursue people for the right reasons, they are not biased, they actually try to address serious criminality, not trivial criminality. And for the most part, that’s true. Although you get, of course, exceptions that can make headlines and become very worrisome.
Karina: Right, yeah, and I think that biased is really key because like you said, if everybody were to be prosecuted for laws, then there would be... Over half of Americans might be in jail right now, which clearly they’re not. And so in terms of the... You said it’s not really the hidden laws that are the problem, it’s just the ones that aren’t prosecuted. So do you think that a lot of people who break these laws, it is like a genuine accident or do you think it’s that they kind of have in the back of their mind, well, you know, I know that this is illegal, but I’m not gonna be charged for it, so they just go ahead with it anyway.
Douglas Husak: Well, he certainly offense is committed by accident, and a lot of these are in the corporate context, the statutes governing what corporate offices are allowed to do are very broad and it’s hard to know what the parameters are. But in terms of people, the ordinary citizens, not as though you’re committing drug offenses by accident. I mean, you can imagine situations like that where someone spikes your drink or something, but for the most part, when you take an elicit drug, you’re pretty sure you know what you’re doing. You actually may not know what drug you’re taking, because street drugs are not labeled. One of the problems, of course. And so you have little idea what’s in the substance is you’re consuming. You think you’re taking heroin, but really you’re taking Fentanyl, and that’s not an uncommon state of affairs. But that you’re taking an illicit drug is something I think that virtually anyone who uses drugs is aware of.
Karina: Right, right. And so as a professor at Rutgers, how do you take this background and these books that you’ve written and kind of incorporate them into your curriculum?
Douglas Husak: My curriculum, Philosophy of Criminal Law is a specialty that really is not taught per se. I teach courses in Philosophy of Law, and I’ll do sections in a course like that on some philosophical issues in contract law, in tort law, and in criminal law. But to do a course on the material in which I specialize is not something I would subject undergraduates to. Even law students are not that eager to think about these issues. Maybe at the most elite law schools, you get students who are more philosophically inclined and conceptually aware, but at run-of-the-mill law schools, people are more interested in learning things that will help them in their profession. And a lot of what I think about doesn’t really have that kind of pay off, I’m afraid. It’s fascinating and any number of people get caught up in these issues, but it’s hard to make a living thinking about the issues that I specialize in. And I don’t really teach this very much.
Karina: Interesting, yeah, and so kind of closing out the interview, we’ve talked to a few criminal law... Criminologists on here or people who study things within crime like you do, and they say there will never be a shortage of careers because people will always be committing crimes. But this is just a little bit for my own curiosity, do you think that you or people you know are definitely part of this 70% that has done something illegal? You don’t have to tell us what it is, but do you think that it is just people walking around that we know every day who are part of the 70% who honestly should be in jail?
Douglas Husak: Should be in jail. Well, no, I don’t think so. In fact, that’s part of the point that it would be crazy to put these people in jail. I have committed crimes. Probably you have too. I don’t think I belong in jail and I doubt that you belong in jail. It would not be a good use of resources. It wouldn’t do anyone any good. We have too many people in jail already, and we shouldn’t be looking for ways to put even more people in jail, especially not you and me. There may be people out there who belong in jail who aren’t, but there are a lot more people in jail who probably shouldn’t be there. So yeah, I mean, if they’re 70%, they’re walking among us. It’s not as though you have... Definitely hard to find these people. You just look to your left and to your right, and there they are.
Karina: Right. Yeah, and I think what you said about they shouldn’t be in jail is kind of what you’re trying to emphasize, that’s part of the problem is that there’s so many things that you can be criminalized for, and although most people won’t be, there are that small subset who maybe do get penalized for a crime that they really shouldn’t be in jail for, so what’s kind of your opinion on that?
Douglas Husak: The people who are in jail, who shouldn’t be in jail, well, you need criminal justice reform. And of course, that’s in the air, there has been more talk about criminal justice reform in the last couple of years. It’s a very slow process, but reforms are being made, things are improving. Although the public may not believe it, there are fewer people in jail now than there were a year ago, two years ago. I’d like for that trend to continue. And so crime rates, of course, are quite different. They have ticked up in the last year or so during the pandemic. No one has a real good explanation of why that’s so, but it’s something that worrisome and certainly is an issue in upcoming elections.
Karina: Wow, well, thank you so much for taking the time to talk with us. It was really fascinating. I mean, the book you’ve written is really something that I don’t think a lot of people are discussing, and so we have seen a lot of crime reform and so I think it will be a hot topic, especially in the coming year, so... Yeah, thank you so much.
Douglas Husak: Well, thank you very much. It was good to be here.
Tim: Thank you.
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