The Problem of Overcriminalization

Overcriminalization is a dangerous trend that one expert defines in a nutshell as “an overreliance on the criminal laws to affect the way people behave.”

What if I told you that our federal codes define approximately 4,500 federal crimes—so many, in fact, that no one, including the government, actually knows how many—but that we still feel the need to enact over 50 new crimes per year? What if I told you that, in addition to all these statutes, there are many thousands more federal regulations that, if violated, can also result in criminal liability?

You might tell me to go on home with that hippie propaganda, but actually, you can find these very statements on the website for the Judiciary Committee of the U.S. House of Representatives.

And as it turns out, nine months ago, the Judiciary Committee commissioned a bipartisan group of five Republicans and five Democrats to study the problem of overcriminalization.

Since then, the Overcriminalization Task Force has held six substantive hearings on Capitol Hill and received testimony from prosecutors, defenders, law professors, and other witnesses on a number of topics. These include the proliferation of needless criminal laws in general, the expansion of regulatory crimes in particular, the overfederalization of criminal law in areas of traditional state jurisdiction, and the need for a meaningful intent requirement throughout our criminal codes.

All of the task force’s hearings and the written testimony of witnesses are available through these links, courtesy of the National Association of Criminal Defense Lawyers.

But outside the Beltway, people are taking note as well.

Recently, billionaire businessmen Charles and David Koch sponsored a bipartisan panel on criminal justice reform. Among the statistics highlighted were that the United States holds 5% of the world’s total population but houses a grossly disproportionate share of its prison population, and we lock up people at a higher rate than any country in the world. That is likely the case even if we assume that the data emanating from places like China or Russia are not entirely reliable. It led one of the panelists to wonder why, asking rhetorically, “Are we a nation of bad people? I don’t think we are.”