Public Choice Theory and Overcriminalization

Abstract

Overcriminalization is a neologism describing the overuse and misuse of the criminal justice system. Overcriminalization can take several forms — e.g., superfluous criminal statutes, undue expansion of common law accessorial liability doctrines, grossly disproportionate punishments, etc. — but the worst form that overcriminalization takes is the criminalization of conduct that no reasonable person would think is or should be a crime. Legislatures and chief executives are principally responsible for overcriminalization, because there is no opposing force in contemporary politics that would temper politicians’ desire to appear to be “tough on crime” by expanding already bloated criminal codes. The courts are the only hope for stemming or reversing the overcriminalization trend. There are several criminal law doctrines that could be used to deal with the harms of overcriminalization, such as reliance on the “rule of lenity” or recognition of a “mistake of law” defense. But the best hope may be simply for judges to identify this problem for the public and explain why they should be concerned about it. The public can halt this trend if judges can persuade the electorate that overcriminalization is a serious harm to the body politic.

Keywords: public choice theory, overcriminalization, mistake of law defense, rule of lenity