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A Paradox in Overcriminalization

Ekow N. Yankah

Yeshiva University - Benjamin N. Cardozo School of Law

December 22, 2010

New Criminal law Review, Vol. 14, No. 1, Winter 2011
Cardozo Legal Studies Research Paper 324

Given that one of the central roles of political philosophy and criminal theory is illuminating the borders of justified state punishment, the modern crisis of overcriminalization is a painful defeat. Generations of legal theory, grounded in liberalism, has done little to stem the tide of criminal law and the explosion of criminal punishment.

One notable island of decriminalization has been the retreat of criminal punishment surrounding marijuana consumption. With the combination of medical marijuana regimes, reduction of punishment, and halting steps toward full decriminalization, marijuana stands in stark contrast to the highly visible war on drugs that has driven much contemporary overcriminalization.

This piece argues that opponents of overcriminalization have much to learn from the functional decriminalization of marijuana. Marijuana decriminalization has not been successful because of a swing in public attitudes about marijuana use. Rather, decriminalization is possible because advocates can marshal agreement across philosophical starting points, bringing both liberals and nonliberals into consensus. This groundswell demonstrates that legal theorists concerned about containing state power must look beyond liberal theories.

Most importantly, this example reveals that legal theorists interested in turning back the tide of overcriminalization must do more than wait for areas of Rawlsian overlapping consensus; they must reach out to generate consensus with Rawlsian conjecture by viewing law not only from the liberal vantage point but from the nonliberal’s perspective as well.

Number of Pages in PDF File: 35

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Date posted: February 12, 2011 ; Last revised: March 17, 2011

Suggested Citation

Yankah, Ekow N., A Paradox in Overcriminalization (December 22, 2010). New Criminal law Review, Vol. 14, No. 1, Winter 2011; Cardozo Legal Studies Research Paper 324. Available at SSRN: http://ssrn.com/abstract=1760070

Contact Information

Ekow Nyansa Yankah (Contact Author)
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States

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