Overcriminalization is the concept that criminalization has become excessive, meaning that an excessive number of laws and regulations deeming conduct illegal have a detrimental effect on society, particularly with respect to victimless crimes and actions which make conduct illegal without criminal intent on the part of the individual.[1]
Overcriminalization comes with problems as all excessive use or overuse of power does. In the event that a defendant is convicted and found guilty of a crime, properly sentencing them is extremely important in a number of ways. One of the results of this crisis is mass incarceration or extremely high rates of imprisonment. As of 2023, the United States currently has the second largest number in mass incarceration or number of prisoners, around 1.68 million, with China exceeding the U.S. by nearly a million prisoners.[2] With incarceration rates rising at a rapid pace with no signs of decreasing, this will continue the domino effect of negative results pushed by the overcriminalization of low-level crimes and illegal acts without criminal intent. At this time, there are minimal resources and programs that can be used when we have more inmates than people in the related workforce to provide the help the majority of prisoners need for the sake of their mental health and potential futures.
Although fairly recognized as an issue in the U.S., much has yet to be done in response to the issue revolving around overcriminalization. Given that the criminal justice system is also considerably overworked as is, this plays into the lack of effort put towards tackling overcriminalized behavior and its corresponding individual. However, some argue that if we put more focus on preventing overcriminalization tactics, such as stacking charges for the same crime (in instances where this is unnecessary), it could potentially reduce the overflowing criminal cases.[3]
In the federal territory, the criminal code is being exploited to a consistent degree by prosecutors despite their vow to only enforce policies and definitive regulations constructed by Congress.[4] This malicious utilization of the code to get around potential limitations damages the integrity of the criminal justice system and its goals. The limitations set in place are crucial when it comes to properly sentencing a perpetrator based on the nature of their crime(s). New bills with intentions of implementing new laws are created fairly often by just about anyone, meaning anyone with an idea on how we can either criminalize, decriminalize, or refine legalities could have a hand in starting a change those laws and the limits Congress sets for them. For Example, in North Carolina around 2011-2014, the NCGA had been creating bills for new criminalized behaviors at a rapid pace which have since been implemented. The main issue with that, other than the increase in criminalization, is that those new crimes were not mentioned in the state's general statutes.[5]
However, some could argue or point out the benefits or generally positive goals for some means of overcriminalization. This could be to help prevent further crime, or to deter future or prior criminals from offending based on the consequences and punishment that go along with getting convicted.[6] Plus, overcriminalizing can have a few more good aspects than bad in comparison to its opposite meaning decriminalization or under-regulation of any or all crimes could worsen the trust civilians have in the criminal justice system. To illustrate, with overcriminalization we can still at least fight it with the mens rea theory to give leeway to a defendant in defending their alleged actions by investigating the existence of a guilty mind or criminal intent behind their actions.[7] In lots of cases, mens rea is incredibly important to prove or find intent to commit a crime, along with its corresponding partner actus reus.[8] But without this legal acknowledgment, overcriminalization would be far more difficult to combat than it already is (depending on location).
In 2014, the Manhattan Institute for Policy Research began to study the issue of overcriminalization, espousing the idea that state and federal criminal codes are overly expansive and growing too quickly. At the federal level alone, Institute fellows identified over 300,000 laws and regulations whose violation can lead to prison time. The Institute asserts that this puts even well-meaning citizens in danger of prosecution for seemingly innocuous conduct.
From 2014 to 2016, the Institute produced reports on the status of overcriminalization in five states (North Carolina, Michigan, South Carolina, Minnesota, and Oklahoma) and thereafter added more state-specific research.[9][10][11][12][13] National Review has described United States Supreme Court Justice Neil Gorsuch as "a sharp critic" of overcriminalization.[14]
According to the Law Commission, the rate of introduction for new criminal offenses has increased drastically since 1997, with 3,000 new offenses having been added to the statute book between 1997 and 2010.[15] The accusation of overcriminalization has been challenged by Chalmers and Leverick.[16]