Prosecutorial decriminalization.

• Author: Luna, Erik
• Position: Symposium on Overcriminalization

1. INTRODUCTION

   As far as I can tell, Sanford Kadish coined the term "overcriminalization" in a 1962 article in the Harvard Law Review, where he noted the phenomenon of "criminal statutes which seem deliberately to overcriminalize, in the sense of encompassing conduct not the target of legislative concern." (1) After listing a few examples of overcriminalization, such as overly broad bans on gambling and strict liability statutes, Professor Kadish mentioned that these laws "raise basic issues of a morally acceptable criminal code," insofar as they "purport to bring within the condemnation of the criminal statute kinds of activities whose moral neutrality, if not innocence, is widely recognized." (2) He was not the first prominent scholar to articulate the basic problem, however. (3) A few years earlier, for instance, Francis Allen had noted "the sheer bulk of penal regulations," "the accelerating rate at which these accretions to the criminal law have occurred," and "the remarkable range of human activities now subject to the threat of criminal sanctions." (4) Indeed, the breadth of penal codes and overloading of criminal justice systems were common themes of reform efforts throughout the twentieth century. (5)

   Nonetheless, Professor Kadish provided a single word that crystalized the phenomenon--hardly a small accomplishment in a legal and political culture often affected by labels. In the coming years, Kadish and his contemporaries would describe various manifestations and repercussions of overcriminalization in the state and federal systems. (6) The use of criminal law to enforce public standards of private morality, as in the case of drug offenses, failed to suppress either supply or demand. Instead, drug criminalization increased black-market profits and related offenses, required police to engage in devious practices due to the covert and consensual nature of the narcotics trade, and diverted limited resources from the enforcement and adjudication of serious harms. (7) As for regulatory offenses, much of the conduct in question closely resembled business behavior that was "not only socially acceptable, but affirmatively desirable" in an economic system premised on free enterprise. (8) In these situations, "the stigma of moral reprehensibility" did not intuitively attach to the regulated behavior. (9) Rather, each addition of morally neutral conduct to the penal code further diluted the normative force of the criminal sanction.

   Professor Kadish warned that, "until these problems of overcriminalization are systematically examined and effectively dealt with, some of the most besetting problems of criminal-law administration are bound to continue." (10) His prognosis remains as true today as when he offered it in 1967. As my contribution to this Symposium, I will suggest another way of looking at overcriminalization that reconceptualizes the problem and offers a second-best approach to dealing with the phenomenon's most troubling expressions. Regardless of any prescriptive possibilities, maybe the neologism itself, like the one coined by Professor Kadish a half-century ago, might help people rethink the status quo. Before considering the basic idea--what I call "prosecutorial decriminalization"--the following provides some background on overcriminalization and the prospects for change.

2. REFORM PROSPECTS

   On occasion, Professor Kadish was called upon to respond to those who rejected the arguments against overcriminalization as being theoretically unprincipled or, conversely, uselessly abstract. (11) Yet today, decades after he introduced the phrase into the legal lexicon, overcriminalization is acknowledged as a serious problem--not only by academics, but also by eminent jurists, former high-ranking government officials, and organizations from across the political spectrum (12)--inspiring books, law review symposia, and congressional hearings. (13) The phenomenon can be seen as encompassing an assortment of issues, including:

   * offenses deficient in clearly harmful wrongdoing (e.g., vice crimes and many non-larcenous economic offenses);

   * duplicative penal provisions and novel crimes already well covered by existing law (e.g., carjacking);

   * statutes passed without genuine jurisdictional authority (e.g., federal offenses with specious links to interstate commerce);

   * doctrines that can expand liability to those who hardly seem blameworthy (e.g., strict liability and vicarious liability); and

   * harsh punishments that bear no necessary relationship to the harm caused or threatened by the offense and the blameworthiness of the offender (e.g., some mandatory minimum sentencing laws). (14)

   This understanding of overcriminalization, shared in whole or in part by those who seek to contain or reverse the phenomenon, is indicative of a newfound appreciation for the legitimate ends of criminal law. With a convergence of opinion, the discussion inevitably turns to a search for answers--and just as inevitably, two solutions have been offered by scholars and reformers. The first option would be for lawmakers to address overcriminalization by trimming the penal code, with a scalpel in some places and a hatchet in others. This approach seems preferable to all others, given that a legislature possesses the most straightforward means to deal with the problem. Besides, lawmakers are the ones who created the mess to begin with, by continually expanding the reach of criminal justice systems, enacting new crimes, providing for harsher punishments, and broadening culpability principles, often in the absence of deontological or empirical justification and without regard for statutory redundancy or jurisdictional limitations. A variation on this theme calls for the depoliticization of at least the initial steps of criminal lawmaking by shifting responsibility for defining crimes and setting punishments in the first instance from lawmakers to non-political criminal justice experts. (15)

   The second option involves the imposition of the judiciary as a check on overcriminalization. Over the years, this approach has been advocated by a number of leading scholars, each offering his or her own theory of judicial review. Among others, the late, great William Stuntz considered the potential of constitutionalizing substantive criminal law--through a minimum mens rea requirement, for example, and revitalized rules of desuetude and notice--all as a means to limit the power of lawmakers to ban and punish conduct. (16) In a subsequent article, Professor Stuntz suggested a prerequisite of regularized enforcement, where the government would have to show that a sufficient number of similarly situated defendants had been convicted of the crime charged against the accused, and that a minimum number of factually analogous cases resulted in sentences as severe as the one imposed in the case at bar. (17) Such proposals make a great deal of sense in light of the fundamental role of the judiciary as a countermajoritarian safeguard against political excesses. (18)

   Unfortunately, neither of these overarching solutions has had much traction, due in large part to the dysfunctional political process that expands but never contracts the criminal justice system. In 1995, Professor Kadish summed up the typical cycle of "creeping and foolish" overcriminalization:

   Some dramatic crimes or series of crimes are given conspicuous media coverage, producing what is perceived, and often is, widespread public anxiety. Seeking to make political hay, some legislator proposes a new law to make this or that a major felony or to raise the penalty or otherwise tighten the screws. Since other legislators know well that no one can lose voter popularity for seeming to be tough on crime, the legislation sails through in a breeze. That the chances of the legislation working to reduce crime are exceedingly low, and in some cases the chances of it doing harm are very high, scarcely seems to be a relevant issue. (19) In this sadly familiar account of criminal justice politics (20)--one which is consistent with the sociological theory of "moral panics," the measured impact of sensational crime stories, and the collapse of the harm principle as a legislative limit (21)--new offenses and harsher punishments become means to placate constituents and make fodder for reelection campaigns. There is also a "deeper politics, a politics of institutional competition and cooperation," Professor Stuntz argued, that "always pushes toward broader liability rules, and toward harsher sentences as well." (22) Lawmakers have an incentive to take symbolic stands through criminal law, and law enforcers have an interest in disposing of cases and obtaining convictions. All of this can be achieved by restricting more behavior (and restricting it in more ways) and increasing sentences, which leads to more and cheaper convictions via plea bargaining. Together, lawmakers and law enforcers have a powerful predisposition toward overcriminalization.

   For its part, the third branch has done virtually nothing to curb the phenomenon, having all but abandoned the field of constitutional criminal law. Outside of a few areas--most notably, freedom of expression, procreative rights, and the death penalty--the courts have been hesitant to limit lawmakers in their enactment of crimes and punishments. At its essence, adjudication in the United States is a conservative endeavor, constrained by notions of stare decisis and the obligation to justify deviations from past precedent. (23) Perhaps more than its co-equals, the judiciary is cognizant of its own institutional limitations. (24) The courts are also "haunted" by the "ghost of Lochner" (25) and thus careful to avoid the semblance of a super-legislature. As a practical matter, judicial reticence to counter overcriminalization may be partially attributed to the lack of clear-cut standards. For instance, at what point does a term of imprisonment become "cruel and...