A “slippery slope toward oppressive, centralized government power.” — One Nation Under Arrest

Over-Criminalization: Overview

Over-criminalization — the making and enforcing of vague, often duplicative laws – is a serious problem in our legal system. Over-criminalization affects all Americans by robbing us of our fundamental civil rights and costing taxpayers billions of dollars each year for criminal justice programs that are wasteful and even harmful. Over-criminalization also encourages prosecutors to over-charge for minor offenses that would be more appropriately addressed under civil or administrative law.

Over-criminalization can be seen in a variety of ways:

  • Overlapping statutes that lack clear-cut definitions
  • Criminal statutes with inadequate mens rea requirements
  • Vicarious liability laws
  • Criminal consequences for regulatory non-compliance
  • Police arrests that are biased or arbitrary
  • Inconsistent practices that go beyond the reasonable exercise of prosecutorial discretion
  • Excessive federalization of state-level crimes

As the American Bar Association reported in The Federalization of Criminal Law, the body of federal criminal law has become so large that “there is no conveniently accessible, complete list of federal crimes.” Federal agencies have issued an estimated 300,000 regulations that can entail criminal consequences such as imprisonment. Clay v. United States offers an example of executives who received jail time for making ordinary business decisions.

As a result, innocent Americans have been arrested, prosecuted, convicted, and imprisoned for minor actions that most persons would never regard as a “crime.” Now, the United States has the highest incarceration rate of any country in the world.

A number of organizations have launched efforts to reduce over-criminalization, including: