The Case Against Criminalisation of Laws

The State exists as a result of a social contract between individuals and their communities. Citizens empower the state, as an institution, with a monopoly over the use of violence. In exchange the state must provide them with protection and stability. The relationship between citizens and the state is that of a principal-agent. Where citizens are the principle and the state accountable to them as their agent. If the state is authorised to use force, it is only under particular conditions.

These conditions may vary in different situations but there are at least three consistent principles that the state must follow. 

First, an individual can be punished only if their actions cause harm to others. The use of force is illegitimate and out of proportion when the harm committed to the community is a minor inconvenience.

Second, the punishment must never be disproportional to the crime. The state is also the agent of the person accused of the crime, and it owes them this responsibility. 

Finally, if there is a way to resolve the issue without using force, it should be the first priority. The use of force must be the last resort. 

Modern-day governments often fall short on these conditions, and are behaving in a way that leads to the path of overcriminalisation. 

A useful example is that of the Narcotic Drugs and Psychotropic Substances Act, 1985 in the state of Punjab. This law deals with the harm caused by drug addiction. Under section 27 of the Act, consumption of narcotic drugs or psychotropic substances is deemed to be a criminal offence. 

The problem with this law is that it fails to understand the problem of addiction from an individual’s view. Someone addicted to drugs cannot instantly change their proclivity to drugs the minute a law is passed, even if the person wishes to do so. Instead of helping individuals overcome their problems, the law intensifies their misery. The person being criminally punished is inflicting harm on themselves from the addiction, not society at large. The punishment is not proportional and does not take into consideration other reasonable alternatives like rehabilitation that can substitute the use of force. This law is a result of the state’s instinct for overcriminalising legal provisions.

The state’s instinct for overcriminalisation can become egregious through blanket provisions of criminalisation. One such instance is section 108 of the Mental Health Act, 2017. The generality of its phrasing is problematic: Any person violating any provision of the act, or any rule, or any regulation, made to implement the act, will be imprisoned for a term of six months, in the first instance, and be imprisoned for two years, in the second instance. 

The criminal generality of this law makes an error in record keeping to be at the par with performing a brain surgery without consent. Arbitrary blanket provisions are dangerous. They are worse than outrightly unjust laws, given their blanket criminal provisions are in the fine print, giving them the impression of laws that are for a legitimate reason. But they are vehicles for injustice in the name of collective good.

Unfortunately, there is much popular support for harsher punishments for inflicting harm in our society. Draconian punishments are often justified through the arguments for establishing deterrence. Disproportionate punishments imposed on individual offenders, it is believed, will prevent that particular offender from committing crimes again, and pass a larger general message to deter others in the society.

Except, harsher punishments in the laws don’t deter crimes at all. It is the certainty of being caught that enforces deterrence, not the punishment imposed. When the United States imposed prohibition on alcohol in the 1920s, the law penalised offences like moonshining with life imprisonment. Despite this, the compliance with this law was so low that the alcohol centred party culture of the decade earned it the nickname of “the roaring twenties”. The Bureau of Prohibition had just 15,000 agents for the entire country. With the low chance of being caught, no punishment could deter defaulters.

But through overcriminalisation there is a larger duty that the state also fails at. It is the agent’s duty towards its principle, the individual citizen who is on the receiving end of criminal punishments. When the state as the principle reacts with brutality it increases recidivism, which is the tendency of the criminal to reoffend.      

Research by the scholar Ilyana Kuziemko has shown that removing the opportunity for shortening a prison sentence through parole reviews, increased reoffending rates by about 10%.  When the state as the agent abandons thinking from the principle’s perspective, prisoners lose hope, engage less in rehabilitation, and behave worse out of cynical frustration. 

Overcriminalisation violates the foundational principles of the social contract, making the state’s legitimacy over violence questionable. Decriminalisation is not a favour bestowed upon citizens due to the kindness of the state and its leaders, but rather a return to the ethical core of why these leaders are given power, in the first instance. The citizen is not a subject of the state but rather its master. Reforming the legal system in accordance with this principle is an important reform path to take ahead.