“Overcriminalization” describes the trend in America – and particularly in Congress – to use the criminal law to “solve” every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives. Criminal law is supposed to be used to redress only that conduct which society thinks deserving of the greatest punishment and moral sanction.
But as a result of rampant overcriminalization, trivial conduct is now often punished as a crime. Many criminal laws make it possible for the government to convict a person even if he acted without criminal intent (i.e., mens rea). Sentences have skyrocketed, particularly at the federal level, and are often disproportionate to the wrongfulness and severity of the conduct.
Overcriminalized.com presents a wide range of materials to raise awareness and combat overcriminalization.
Case Studies presents stories of real people – generally individuals who intended to act as law-abiding citizens – who were arrested, prosecuted, and sometimes even imprisoned because of overcriminalization.
Research provides scholarship, articles, and congressional testimony by the Heritage Foundation and its allies (such as the National Association of Criminal Defense Lawyers – NACDL) in the battle against overcriminalization.
Legislation provides details, status, and basic commentary on legislation pending in Congress that could perpetuate the dangerous trend of overcriminalization.
The Heritage Foundation’s website (heritage.org) includes related materials on overcriminalization and other legal reform topics at this Link.
of Social and Economic Conduct
The origin of modern
criminal law can be traced to early feudal times. From its inception,
the criminal law expressed both a moral and a practical judgment about
the societal consequences of certain activity: to be a crime, the law
required that an individual must both cause (or attempt to cause) a wrongful
injury and do so with some form of malicious intent. Classically, lawyers
capture this insight in two principles: in order to be a crime there must
be both an actus reus (a bad act) and a culpable mens rea (a guilty mind).
At its roots, the criminal law did not punish merely bad thoughts (intentions
to act without any evil deed) or acts that achieved unwittingly wrongful
ends but without the intent to do so. The former were for resolution by
ecclesiastical authorities and the latter were for amelioration in the
tort system. In America today, this classical understanding of criminal
law no longer holds.
The requirement of
an actual act of some form is fundamental. As an initial premise, Anglo-American
criminal law does not punish thought. For a crime to have been committed
there must, typically, be some act done in furtherance of the criminal
purpose. The law has now gone far from that model of liability for an
act and, in effect, begun to impose criminal liability for the acts of
another based upon failures of supervision that are far different from
the common law's historical understanding.
Similarly, the law
historically has required that before an individual is deemed a criminal
he must have acted with an intent to do wrong. Accidents and mistakes
are not considered crimes. Yet contemporary criminal law punishes acts
of negligence and even acts which are accidental. In the regulatory context,
as Justice Potter Stewart has noted, there is, in effect, a standard of
of Criminal Law.
To these fundamental changes in the nature of criminal liability one must
also add significant changes in the subject matter of criminal law. At
its inception, criminal law was directed at conduct that society recognized
as inherently wrongful and, in some sense, immoral. These acts were wrongs
in and of themselves (malum in se), such as murder, rape, and robbery.
In recent times the reach of the criminal law has been expanded so that
it now addresses conduct that is wrongful not because of its intrinsic
nature but because it is a prohibited wrong (malum prohibitum)--that is,
a wrong created by a legislative body to serve some perceived public good.
These essentially regulatory crimes have come to be known as "public
Thus, today the criminal
law has strayed far from its historical roots. Many statutes punish those
whose acts are wrongful only by virtue of legislative determination. The
distortion of the classical criminal law has arisen for a variety of reasons
(some of which may have been accompanied by benign motives). For example,
the Enron scandal and similar acts of intentional corporate fraud have
led to overly broad reform proposals that may trap honest but unsophisticated
corporate managers. But whatever the cause, the distortion is not without
its consequences. The landscape of criminal law today is vastly different
from what it was 100 years ago--so much so as to be almost unrecognizable.
Lack of Judicial
Because the courts have deliberately chosen a limited, almost self-abnegating
role in constraining the use of criminal sanctions, no effective judicial
constraint currently limits the extent to which individual conduct that
bears no direct causal relationship to a societal harm may be criminalized.
Nor is there a limit on the extent to which, in the social and economic
context, the legislatures may dispense with the traditional conceptions
of mens rea. The consequences of this are two-fold: a pathological legislative
approach to criminal law and an excess of prosecutorial discretion.
The legislative impetus
is clear--there is a "market" of public approval for more criminal
laws and no effective consideration of countervailing costs to society.
And in the absence of any judicial check on this legislative trend, the
result is a wholesale transfer of power from elected legislative officials
to prosecutors who, in many instances, are unelected and not responsible
to the public. Where once the law had strict limits on the capacity of
the government to criminalize conduct, those limits have now evaporated.
Society has come, instead to rely on the conscience and circumspection
in prosecuting officers. Or, as the Supreme Court said in United States
v. Dotterweich, Americans are obliged to rely only on "the good sense
of prosecutors, the wise guidance of trial judges, and the ultimate judgment
of juries" to determine criminal conduct. In effect, the legislative
branch has transferred a substantial fraction of its authority to regulate
American social and economic conduct to those who have no expertise in
the matter: prosecutors, trial judges, and jurors who make decisions on
criminalizing conduct without any ability to consider the broader societal
impacts of their decisions.
Where once, to be
a criminal, an individual had to do an act (or attempt to do an act) with
willful intent to violate the law or with knowledge of the wrongful nature
of his conduct, today it is possible to be found criminally liable and
imprisoned for a substantial term of years for the failure to do an act
required by law, without any actual knowledge of the law's obligations
and with no wrongful intent whatsoever. These developments are advanced
in the name of the "public welfare"--an express invocation of
broader social needs at the expense of individual liberty and responsibility.
It is, ultimately, the triumph of a Benthamite utilitarian conception
of the criminal law over the morally grounded understanding of criminal
law advanced by William Blackstone. One may, and indeed one should, doubt
the wisdom of such a course. Given how the criminal law has developed,
a free people are constrained to ask the question: Are broader social
needs well served when individual liberty and responsibility suffer?
To read more
on this issue, click here.