Overcoming overcriminalization.

• Author: Smith, Stephen F.
• Position: Introduction through II. The Judicial Contribution to Overcriminalization, p. 537-565 - Symposium on Overcriminalization

1. INTRODUCTION

   Few issues have received more sustained attention from criminal law scholars over the last half-century than overcriminalization. It is fair to say the judgment of the scholarly community has been overwhelmingly negative. From all across the political spectrum, there is wide consensus that overcriminalization is a serious problem. (1) Indeed, a recent book-length treatment of the subject describes overcriminalization as "the most pressing problem with the criminal law today." (2)

   As the term implies, "overcriminalization" posits that there are too many criminal laws on the books today. It is, of course, difficult to make such claims without a normative baseline--an idea of what constitutes the "right" number of criminal laws--and such a baseline is elusive at best. Still, history and crime rates provide relevant benchmarks, and they suggest that the criminal sanction is being seriously overused, particularly at the federal level, where overcriminalization has resulted in nothing less than the federalization of crime.

   Federal criminal law has been growing at a breakneck pace for generations. According to a 1998 American Bar Association report, an incredible 40% of the thousands of federal criminal laws passed since the Civil War were enacted after 1970. (3) The relentless pace at which new federal crimes are passed has continued despite significant recent declines in crime rates. On average, Congress created fifty-seven new crimes every year between 2000 and 2007, roughly the same rate of criminalization from the two prior decades, resulting today in some 4,500 federal laws that carry criminal penalties. (4) Thus, whether crime rates are rising or falling, the one constant--as predictable as death and taxes--is that scores of new federal criminal statutes are being enacted.

   In addition to the ever-expanding number of criminal statutes, standard critiques of overcriminalization also bemoan the broad scope of modern criminal codes. Contemporary criminal codes reach conduct that, in previous generations, would not have been subject to punishment. The classic example is so-called regulatory offenses. These offenses punish conduct that is mala prohibita, or wrongful only because it is illegal, and may allow punishment where "consciousness of wrongdoing be totally wanting." (5) With the proliferation of regulatory offenses, infractions that in prior generations might not even have resulted in civil fines or tort liability are now subject to the punishment and stigma of the criminal law. (6)

   This is the conventional account of overcriminalization. It reflects the deeply held beliefs of many scholars and participants in the public policy arena. Unfortunately, as true as it is, it is remarkably incomplete--so incomplete, in fact, as to be potentially misleading.

   As I hope to demonstrate in this Article, the usual overcriminalization story has two key shortcomings. First, it obscures an important causal factor in the rise of overcriminalization--which, properly understood, is not a function of legislative choice alone. The overcriminalization problem is not simply that legislatures have enacted too many criminal laws and cast those laws in terms that are too expansive in reach. Courts bear a large share of the blame for overcriminalization, given their penchant to construe ambiguous criminal statutes broadly in a misguided quest to ensure that morally blameworthy offenders will not escape conviction. Second, standard critiques of the number and scope of criminal laws give insufficient attention to the serious crime-definition and sentencing problems that make a broad and deep criminal code so troubling in practice. These problems, at their root, are not that they expose too much conduct to punishment, but rather that they reach conduct that either does not deserve punishment or that does not deserve the amount of punishment provided for in particular contexts.

   Both of these shortcomings in conventional understandings of overcriminalization emanate from a common mistake--namely, the tendency to think about overcriminalization primarily in quantitative terms. That is to say, overcriminalization is typically framed as an objection to the number of criminal laws on the books (which is viewed as too high) and to the reach of those laws (which is viewed as too broad). (7)

   It is important to recognize, however, that overcriminalization has qualitative dimensions--dimensions that may be even more significant to the integrity and efficacy of the criminal law than its better-known quantitative aspects. Simply put, overcriminalization tends to degrade the quality of criminal codes and to undermine the effort, important to retributivists and utilitarians alike, (8) to provide just and proportional punishments for offenses. For example, a code that is too large and grows too rapidly will often be poorly organized, structured, and conceived. The resulting laws may not be readily accessible or comprehensible to those subject to their commands. Moreover, a sprawling, rapidly growing criminal code is especially likely to contain crimes in which the all-important conduct (actus reus) and state of mind (mens rea) elements are incompletely fleshed out. These kinds of drafting and interpretive flaws can give unwarranted and perhaps unintended sweep to criminal laws and threaten disproportionately severe punishment.

   As a strategic matter, the difficulty with the standard conception of overcriminalization (and, at the federal level, the federalization of crime) is that it points to a disease for which there is no possible cure. Framing overcriminalization as a quantitative problem leaves only two possible solutions: either legislatures must repeal, or courts must declare unconstitutional, large swaths of existing criminal codes. No one thinks either prospect is likely, and for good reason, given entrenched patterns of legislative and judicial behavior. (9) To the extent that overcriminalization, understood as a quantitative problem, is what ails American criminal law, the prognosis is grim indeed.

   Fortunately for overcriminalization's many critics--among whom I count myself (10)--many of the qualitative problems associated with overcriminalization can be addressed without heroic self-restraint by legislatures or activism by the courts in limiting legislative lawmaking powers. Lifting the quantitative blinders, as this Article advocates, reveals that there is much the courts can do on their own, without resort to any constitutional blunderbuss, to help the legal system overcome overcriminalization. First, however, the nation's judges need to take a long, hard look in the mirror. If they do, they will find that they, along with legislatures and prosecutors, share in the blame for overcriminalization. This realization will no doubt come as a shock to them, and it should. The good news is that realizing their contributory role in overcriminalization should give them a sense that they have the power--and, indeed, the responsibility--to construe criminal statutes in ways that make overcriminalization far less objectionable in practice, if not tolerable (or, as some would have it, (11) possibly even positive in certain contexts).

   The remainder of this Article is organized as follows. Part II shows that courts, not just legislatures, share in the blame for overcriminalization. That is because courts routinely expand the scope of ambiguous criminal statutes, giving inadequate attention to cogent reasons for adopting narrower interpretations. (12) Part III identifies some of overcriminalization's leading qualitative problems. This discussion underscores the notion established in Part II that courts have taken a criminal justice system characterized by rampant overcriminalization and made it considerably broader and harsher. Part IV identifies interpretive strategies that courts, properly sensitized to the qualitative problems of overcriminalization, can and should employ to ameliorate those problems--strategies that, importantly, do not require courts to blaze new and unlikely trails in constitutional law or to hope against hope for self-restraint by legislatures and prosecutors.

   As will become clear, the discussion of overcriminalization in this Article focuses on federal criminal law. The phenomenon, however, is hardly unique to the federal system. State legislators, prosecutors, and judges have the same incentives as their federal counterparts to expand the scope of criminal liability and increase penalties. (13) Indeed, in some respects, overcriminalization may be even more entrenched at the state level. After all, most state chief prosecutors and judges are elected by the public, giving them even stronger incentives than their federal counterparts to cultivate reputations for being "tough" on the kinds of crimes the public worries the most about, including crimes of violence and street crimes. (14)

   On the other hand, it may well be the case that overcriminalization is more readily and more commonly exploited at the federal level than the state level. State prosecutors have far less agenda control than federal prosecutors. State enforcement efforts are necessarily devoted to "politically necessary cases," such as murders, rapes, drug dealing, burglaries, and thefts. (15) These cases are understood to be the responsibility of state enforcers--which is why, for example, people who witness murders or drug deals call the police, not the Federal Bureau of Investigation or the Drug Enforcement Administration--and so state prosecutors simply do not have the luxury that their federal counterparts have to pass over serious crimes in favor of the overcriminalization horror stories that come from the federal system. (16) Moreover, precisely because the state system is on the front lines of the proverbial war on crime, state enforcers face enormous resource constraints, both in terms of prosecutorial time (17) and prison space...