Punishable Crimes

Every morning in the United States, 2.3 million people wake up in a state or federal prison, while 6.6 million people continue living their lives under some form of correctional supervision. Committing a punishable crime was their entry point into the criminal justice system. which authorized the government to arrest, detain, prosecute, and ultimately convict them. Punishable crimes are, in this important sense, the foundation of our criminal justice system. But what are they?

Criminal laws are the rules and prohibitions—typically drafted by legislators and codified in criminal statutes—that tell us how to behave if we want to avoid state-sanctioned punishment. Crimes are acts that violate these laws. In a nation with 5% of the world’s population, 20% of the world’s prisoners, and more criminal laws than anyone can count, now more than ever, it is important to consider what activities should be punished as a crime. America’s approach to criminalization can be simply summarized. Too many people are convicted of crimes, while many we do convict spend too much time in prison. As a result, individual lives are destroyed, families are separated, and communities are devastated.

Below, we have identified some of the key issues that arise when determining what behavior to criminalize and the academic literature on those issues. The research collected here raises and then answers essential questions for those interested in addressing the issue of punishable crimes in American society such as: Do we have too many crimes and, if so, what should be done about it? Should a guilty mind—or what the law refers to as mens rea—be a necessary component of criminal liability? Should we criminalize the use and distribution of controlled substances and, if so, what should our drug laws look like? Why are punishable crimes disproportionately enforced upon communities of color, and what have the consequences been? How should we approach criminalization decisions in other contexts—from guns to gangs to bullying?

The Criminal Justice System Punishment & Sentencing Pretrial & Trial Policing Prison, Release& Reentry Punishable Crimes


Every year, more and more crimes are added to our nation’s criminal codes. Criminal laws are often passed by legislatures with little debate or consideration, resulting in so many crimes in this country that few jurisdictions know how many crimes their criminal codes even contain. Some of these crimes cover exactly what you’d expect, core offenses like murder, rape, and theft. Others, less so. For example, criminal laws prohibit displaying deformed animals and peddling untested sparklers. Another form of overcriminalization occurs when legislatures criminalize the same conduct many times over—for example, someone who takes a car might be convicted of theft, robbery, carjacking, and unlawful use of an automobile, among many other overlapping offenses.

The outcome is a world in which just about everyone will commit a crime in their lifetime, and a not-insignificant number of those who do will face a lifetime of consequences, often much graver than one might expect. Key questions in this area are, what behaviors or acts should be criminalized and how do we address situations where a single act could be covered by a variety of different crimes? The academic research presented here, explores the causes of overcriminalization; assesses its consequences; and considers what should be done about it.


When considering what to punish as a crime, intent matters. There is a world of difference between someone who accidentally gets into a car crash and someone who intentionally rams his car into another. This idea is captured by the principle of mens rea (meaning “guilty mind” in Latin), which requires the government to prove that the defendant had a blameworthy state of mind. It is for this reason that we typically don’t punish those who are too young, disabled, or mentally ill to meaningfully reflect on their choices.

Nevertheless, the criminal justice system does not consistently require a guilty mind for an act to be deemed criminal. In a growing number of situations, state and federal criminal statutes impose criminal liability—and in many instances, substantial criminal punishment—in the absence of a guilty mind. A key question for those interested in this issue is the extent to which punishable crimes should require a guilty mind. The academic research presented here considers why we care about the guilty mind, assesses the extent to which our policies reflect that concern, and explores how our policies might be reformed to do a better job of it.


The use, sale, and distribution of some mood-altering substances is allowed, while others are strictly prohibited. For instance, alcohol, caffeine, and nicotine are not only lawful, but they are a deeply ingrained part of our most common social practices and rituals. In contrast, merely possessing drugs like marijuana, cocaine or methamphetamine can land you in prison. What explains these differences in treatment? Can they be justified? These questions are pressing now more than ever in light of recent marijuana legalization initiatives and eye-opening research on the potential benefits of some of the most criminally regulated drugs, like psychedelics. The academic research presented here explores the causes and contours of criminal prohibition of controlled substances in the United States; assesses its costs, benefits, and fairness; and explores possibilities for reform.


While our criminal laws apply broadly, to all, they’re borne in racially disparate ways, concentrated on people of color and the poor and underserved minority communities that can least afford to bear them. And yet, bear them they have through a perpetual cycle of racially biased enforcement, charging, and conviction for forms of conduct that white people engage in at similar or higher rates, yet for which they rarely face criminal consequences. In a nation founded on the promise of equality, the disparate consequences of criminalization—and overcriminalization—on people and communities of color is a foundational problem. The academic research presented here explores the causes of this foundational problem as it arises in criminalization context, assesses its consequences, and considers ways of fixing them.


Every type of behavior criminalized raises its own set of issues. For example, guns are legal, and owning guns is even constitutionally protected. So at what point is carrying, brandishing, or using a gun a crime? For example, should using the gun during a crime of violence or selling it to someone who is planning to do the same be a crime? Or consider the challenge posed by bullying someone to the point of suicide. Does breaking someone down mentally to the point of them taking their own life count the same as if you had pulled the trigger? In every context, drawing the line between behavior that is criminally sanctionable versus socially or even morally distasteful is hard work. It raises difficult policy issues about the costs, benefits, and fairness of using the criminal law—as opposed to civil sanctions or even social norms—to enforce a prohibition. It also raises difficult legal issues about the meaning of words used to articulate those policies. From the definition of “carry” to the definition of “consent,” very little in the criminal law is straightforward. The academic research presented here addresses an array of issues that arise from the criminalization of guns, gangs, and sexual violence, among other forms of conduct.


Experts and Affiliates on Punishable Crimes

Valena Beety

Professor of Law and Deputy Director - Academy for Justice
Arizona State University

Douglas A. Berman

Robert J. Watkins/Procter & Gamble Professor of Law and Executive Director of the Drug Enforcement and Policy Center
The Ohio State University

Bennett Capers

Professor of Law
Fordham University

Gabriel J. Chin

Edward L. Barrett Chair in Law and Martin Luther King, Jr. Professor of Law
University of California, Davis

Aya Gruber

Professor of Law
University of Colorado

Erik Luna

Amelia D. Lewis Professor of Constitutional and Criminal Law and Founder and Director - Academy for Justice Arizona State University

Ben McJunkin

Associate Professor of Law and Associate Deputy Director - Academy for Justice
Arizona State University

Alexandra Natapoff

Lee S. Kreindler Professor of Law
Harvard Law School

Julie Rose O’Sullivan

Professor of Law
Georgetown University Law Center

Michael Serota

Visiting Assistant Professor and Associate Deputy Director - Academy for Justice
Arizona State University

Christopher Slobogin

Milton Underwood Professor of Law, Affiliate Professor of Psychiatry, and Director of the Criminal Justice Program
Vanderbilt University

Stephen F. Smith

Professor of Law
University of Notre Dame

Robert Weisberg

Edwin E. Huddleson, Jr. Professor of Law and Faculty Director of the Stanford Criminal Justice Center
Stanford University