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Bria Bush

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April 17, 2017

Overcriminalization: Criminalizing the Everyday

Overcriminalization can be defined as the overreliance on the criminal laws to affect the

way people behave. The problems that come from that are legion. It is not only about what we

make illegal, but also how we make it criminal, how the laws work, how theyre enforced, who

enforces them, and who has the decision on whether or not to apply them.

1. DEFINING TERMS

What do we mean when we talk about overcriminalization? Its a word that means many

different things to many different people. At its core, however, it means that too many things are

being defined today as crimes (i.e. things that can land you in jail or prison as opposed to paying

some monetary penalty). Too many things are being prosecuted by the government, particularly

by the federal government which has traditionally has left crime prevention largely in the hands

of the states but has increasingly been the prosecutor of choice when it comes to criminal law

enforcement.

The author sees the concept of criminalization in four points: (1) Congress passes too

many criminal laws, (2) that it passes too many overlapping criminal statutes (i.e. a lot of

different rules govern the same conduct), (3) when criminal laws are passed, Congress does not

clearly define what it takes to violate the law, and (4) Congress imposes far too heavy penalties

for the crimes that it does create.

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Ordinary conduct which no one would think is criminal in nature has a criminal penalty

attached and would, therefore, fit into this category of overcriminalization. This term also refers

to the tendency to take conduct that was previously only considered criminal under state or local

law and to make it a federal crime. It has also led to the diminishing of mens rea standards which

are intent, or state of mind standards.

2. TORT LAW IS NOW CONFUSED WITH CRIMINAL LAW

What is meant by tort law and criminal law? One definition is that, in this day and age, when

someone is hurt, instead of just wanting compensation on the tort side, they want to see that

person put in jail. We, as a society, make a distinction between moral culpability and accidents.

For instance, you could be driving a vehicle and tragically kill another person. There is an

enormous, and significant, difference between accidently killing them and running them down

deliberately. We all understand the distinction. The former only involves civil liability; there is

no moral culpability there. The latter includes not only civil liability but also real, moral

culpability. You have the intent to kill, and that is the clearest distinction between civil and

criminal. Unfortunately, it appears, this distinction is being lost.

Watch the local or national news on any given day, and one will see that whenever there

is some environmental catastrophe, factory explosion, mine collapse or similar tragedy, the

public tends to focus immediately on criminality as the answer. This mindset is misguided at best

and detrimental to the rights of the individual at worse.

3. MUST YOU BE A LAWYER TO LIVE IN THE LAND OF THE FREE?

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One finds it difficult to understand how the average person can determine what is criminal and

what is not. Currently, we have approximately 3,000 federal criminal laws on the books. (Cali)

It would be exceedingly difficult for a person to find even a criminal defense attorney that knows

them all; much less an average person. But that isnt where it stops. Legal scholars have

estimated that we have 200,000 or more hidden federal laws in our federal regulations. The term

hidden is not used to sound provocative but to highlight the fact that even the government has

been unable to count them accurately. The Department of Justice has been asked to inform the

public how many criminal laws exist and where they can be found. The DOJ was unable to

provide such an answer. If they dont know, how are we to know?

But overcriminalization also refers to the problem of statutes written so vaguely or so

broadly that most American citizens would be unable to determine what is against the law and

what is not. A person with no legal training would not be able to decipher what constitutes a

crime and, therefore, would be unable to determine if what they were doing was, in fact, illegal.

4. OVERCRIMINALIZATION LEADS TO PRISON OVERCROWDING

As of 2013, the United States had an incarcerated population of just over 2.2 million people.

(Glaze and Kaeble) This is an unprecedented amount of individuals. The U.S. has the second

highest incarceration rate; only behind Seychelles, a tiny island nation of fewer than 100,000

inhabitants. (Mahapatra) This begs the question, Are we a nation of bad people? Are we a

nation of criminals? This author does not believe so. This author believes that we are a nation

that has become addicted to the idea that criminal sanctions are the way in which we should run

our society. This is clearly seen in how our response to crimes related to substance abuse or

offenses related to environmental abuse; our first choice is a criminal statute and imprisonment.
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This country cannot have a labyrinth of laws that make it impossible for society to function

properly.

Works Cited

Cali, Jeanine. "Frequent Reference Question: How Many Federal Laws Are There? | In Custodia

Legis: Law Librarians Of Congress". Blogs.loc.gov. N.p., 2013. Web. 23 Feb. 2017.

Glaze, Lauren and Danielle Kaeble. "Bureau Of Justice Statistics (BJS) - Correctional

Populations In The United States, 2013". Bjs.gov. N.p., 2014. Web. 23 Feb. 2017.

Mahapatra, Lisa. "Incarcerated In America: Why Are So Many People In US Prisons?

[CHARTS]". International Business Times. N.p., 2014. Web. 23 Feb. 2017.