Excerpted From: Terry Skolnik, Use of Force and Criminalization, 85 Albany Law Review 663 (2021-2022) (365 Footnotes) (Full Document)


TerrySkolnikUse of force and criminalization exemplify the state's monopoly on violence. And they constitute some of the rawest forms of state power. The law authorizes police officers to use physical force against individuals who are non-compliant, resistant, dangerous, or aggressive. Officers can arrest, handcuff, and remand individuals into custody. They are authorized to use deadly force. Furthermore, police officers can exercise various powers that involve force--such as physical detentions and stop-and-frisk searches--against factually innocent persons. Correctional officers, in turn, can imprison individuals, restrict their movement, and search them invasively. Use of force produces devastating consequences. Non-consensual physical force undermines individuals' liberty, dignity, autonomy, and privacy. Its disparate use violates political equality. Inevitably, state-sanctioned violence results in mistakes, unnecessary injuries, and deaths, which destroy public confidence in the police and in the criminal justice system.

Although use of force and criminalization seem like distinct concepts, they are not. Actual or threatened force lies behind each step of the criminal justice system, from policing, to plea bargaining, to punishment. Criminalization justifies the use of proactive police encounters, investigations, pre-trial detention, and criminal charges--each of which are backed by physical force. Overcriminalization gives prosecutors more leverage during plea negotiations, which incites individuals--including innocent ones--to plead guilty to avoid the greater force associated with harsher sentences. Punishment is inseparable from criminalization, and can result in the most prolonged subjection to force and coercion. Each of these steps of the criminal justice process--policing, plea bargaining, and punishment--mutually reinforce one another, and are backed by the prospect that the state will use more force if individuals do not comply. Once we see the connection between use of force and criminalization, we cannot unsee it.

This Article advances a theory about this connection. It argues that the two limiting principles that justify use of force--necessity and reasonableness-- should equally apply to justify criminalization. Its core arguments are as follows. Use of force is presumptively wrong because it limits individuals' freedom, autonomy, and dignity without consent. Yet necessary and reasonable force is justifiable because it neutralizes an individual's unlawful, dangerous, or non-compliant behavior without constituting a public or private wrong, such as assault or battery. Given its inextricable connection to use of force, criminalization is also a presumptive wrong that is exacerbated by the inevitability of overcriminalization and the criminal law's enforcement against innocent persons. However, criminalization is justifiable when it is necessary and reasonable, such that it protects fundamental values and interests without constituting a public or private wrong.

This Article's concluding parts show why the state has a moral duty to prevent needless harm associated with use of force and criminalization. In the context of use of force, the state is morally obliged to screen out unsuitable police applicants, provide training, and ensure competency in use of force--all of which promote its necessity, reasonableness, and justifiability. In the context of criminalization, the state has a moral duty to incorporate political mechanisms that foster criminalization's necessity and reasonableness. These safeguards counteract lawmakers' incentives to overcriminalize conduct and judges' inability to engage in proactive constitutional review. Ultimately, this Article shows why use of force theory is deeply tied to criminalization and offers new justifications to limit the criminal law's reach.

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Even if we did not notice it, the connection between use of force and criminalization was there all along. This Article highlighted this connection and showed why the two limiting principles that legitimize use of force by police officers--necessity and reasonableness--should apply to criminalization to justify its use. It showed why use of force and criminalization are both presumptive wrongs that can be justified when they respect those two constraints. Its concluding parts provided mechanisms to help ensure that the state only criminalizes conduct when it is necessary, and when the provision and punishment are reasonable.

This Article's historical examples of decriminalization highlight the importance of independent law reform commissions, and their role in decriminalizing certain acts and omissions. These same examples also provide a cautionary tale about the consequences of ignoring law reform commissions' recommendations. Sentencing commissions and guidelines can help counteract-- though will not eliminate--overcriminalization. When implemented poorly, they can make matters worse. As discussed above, sentencing commissions' institutional design is fundamental. Yet more than ever, existing empirical data, criminology research, and legal scholarship offer a new pathway forward to optimally implement sentencing commissions and guidelines.

Like the link between use of force and criminalization, these two mechanisms-- law reform commissions and sentencing commissions--are also crucial but overlooked. They are not only fundamental to better ensure that crimes are necessary, reasonable, and ultimately, justifiable. Rather, they are also necessary and reasonable means to counteract lawmakers' incentives to overcriminalize, and to compensate for courts' inability to conduct proactive constitutional review.

Associate professor, University of Ottawa, Faculty of Law. Co-director of the Ottawa Public Law Centre.