Douglas Husak, Overcriminalization: The Limits of the Criminal Law (Oxford: Oxford University Press, 2008), xi + 231 pp. A relatively modest academic thesis, intelligently defended, is likely to stand the scholarly test of time. A theoretically extravagant thesis is more likely to be kept in the scholarly domain only as a means of providing intellectual cannon fodder for those intent on defending some more modest version or rival. Douglas Husak's thesis, expounded with an economy and elegance of language reminiscent of the work of Herbert Hart or of Glanville Williams on the criminal law, is of the modest variety. His thesis is that whatever other causes there may be for spiraling levels of punishment in the USA, too much criminal legislation is one of those causes, a cause that other scholars have hitherto neglected. In defending his thesis, Husak by and large takes it as a given that the almost exponential growth in punishment we have experienced over the last 20 years or more cannot be justified, because its damaging effects--and costs--are out of all proportion to the tangible benefits (and they have been precious few, or highly contested) that it has brought with it. It is perfectly reasonable for him to make this assumption. That being so, in the context of his thesis the questions that arise are, has a marked increase in the number and scope of criminal offenses over a similar period contributed to that growth, and if so, what can and should be done to reverse that trend?
