Rethinking Overcriminalization


If there is one thing American criminal law scholars agree on, it is that our justice system suffers from overcriminalization. Our codes criminalize too much conduct; outdated offenses remain too long on the books, and legislatures cannot resist adding new crimes and harsher punishments. This is so because criminal law is a distinctive issue for legislative debate and for democratic politics generally. Few lobby against crime creation; legislators respond to strong majoritarian preferences that make votes against crime creation—or votes to repeal antiquated crimes—politically implausible. Thus criminal law is “one-way ratchet”: it expands but doesn’t contract. On this account, criminal law is a challenge for democratic governance, because criminal law is the product of structural failures in political processes.

Yet this story fails to account for much of American criminal law policy and practice. In fact, legislatures decline to enact bills proposing new crimes or increased punishments every year. They repeal longstanding criminal statutes and reduce punishments. Interest groups and popular opinion often support and sometimes drive these reforms, which means both that democratic sentiment is not solely in favor of ever-increasing harshness and that democratic processes can accurately respond to that sentiment. Legislatures criminalize very little conduct that most people think should be completely unregulated, and unpopular or silly offenses left on the books are routinely nullified by democratically accountable prosecutors or narrowed by courts. As a result, criminal law’s reach into most citizens’ lives is almost surely less in most respects than in the past.

More than ninety percent of criminal law enforcement is state rather than federal, and state criminal justice systems on the whole more democratically responsive than the federal system. Many state legislatures recently have proven better at devising procedural frameworks to harness expertise in the reform of criminal law and punishment policy and to moderate risks of dysfunctional policymaking. Coupled with restraints from other branches, substantive overcriminalization, judged against a baseline of democratic preferences, is a modest problem in the states. And what overcriminalization exists has little effect on criminal justice’s well recognized problems such as excessive plea bargaining, racial disparities, and high incarceration rates.


Criminal Law | Criminal Procedure

Date of this Version

February 2006