Public choice theory and overcriminalization.

• Author: Larkin, Paul J., Jr.
• Position: I. The Problem of Overcriminalization through II. The Causes of Overcriminalization: The Incentives of the Actors in the Criminal Justice System, p. 715-755

1. THE PROBLEM OF OVERCRIMINALIZATION II. THE CAUSESOF OVERCRIMINALIZATION: THE INCENTIVES OF THE ACTORS IN THE CRIMINAL JUSTICE SYSTEM A. Surveying the Battlefield 1. The Ultimate Cause of Overcriminalization: A Design Defect in the Political Process 2. The Principal Form of Overcriminalization: Unnecessary Criminal Laws 3. The Criminal-Regulatory Partnership 4. The Involvement of Private Single-Interest Groups B. Building the Defenses C. Storming the Battlements III. THE LIMITED POLITICAL REMEDIES AVAILABLE TO STEM AND REDUCE OVERCRIMINALIZATION A. Uphill Battles B. Likely Dead Ends 1. Traditional Approaches 2. The "Hydraulic Theory of Overcriminalization" and Asking the Supreme Court for Help IV. THE BACKSTOP: THE JUDICIARY A. Limitations of the Judiciary B. Strengths of the Judiciary 1. Revitalize the "Rule of Lenity" 2. Reject Flatly the "Trust Us" Argument 3. Reconsider the Mistake of Law Defense 4. Find a Place for the Desuetude Doctrine 5. Adopt a Common Law Presumption for Concurrent Sentencing 6. Remember That "Sauce for the Goose Is Sauce for the Gander". V. HOPE? CONCLUSION I. THE PROBLEM OF OVERCRIMINALIZATION

   Much contemporary criminal justice scholarship describes the system as a dystopia. (1) That is an old phenomenon come "'round again." (2) In the "bad old days," back when many states operated criminal justice systems that were "a pious charade," (3) so far removed from the textbook ideal as to be a parody of how the criminal process should work, (4) academics took delight in identifying systemic flaws in state and local criminal processes and in skewering their law enforcement officials for pursuing an atavistic approach to justice. (5) Later, as the Supreme Court roped in the outliers, commentators analyzed the doctrinal development of substantive criminal law (6) and the course taken by the Supreme Court in its attempts to iron out the remaining procedural wrinkles in federal and state efforts to investigate crimes and dispose of cases. (7)

   Today, the academy less often analyzes Supreme Court case law than it pursues systems analysis of the criminal justice process. (8) The problems depicted are not minor blemishes. The system seems beset by core defects that should have been fixed long ago: prosecutors withholding or concealing obviously exculpatory evidence, (9) the government's refusal to fund forensic examinations--DNA tests in particular--that could establish with near certainty whether a given individual committed a particular crime, (10) the conviction of innocent defendants represented by appointed defense counsel too swamped with cases and too severely underfunded to properly investigate the charges against their clients, (11) and the sight of prisoners stacked like cordwood in the nation's prisons. (12)

   One of those flaws is "overcriminalization." The crux of that neologism consists of the use of the criminal law to punish conduct that traditionally would not be deemed morally blameworthy. (13) Every society has found it necessary to identify some conduct as verboten in order for civil society to exist, and to accompany that list with some form of punishment in order to give those prohibitions teeth. The alternative is bellum omnium contra omnes. (14) Having too many criminal laws, however, creates a different set of problems. (15)

   If the penal code regulates too much conduct that is beyond the common law definitions of crimes or that is not inherently blameworthy, several problems arise. It becomes a formidable task for the average person to know what the law forbids, because the moral code offers no lodestar. It is difficult for the courts to curtail law enforcement excesses, because the police almost always will have probable cause to arrest someone for something. It is challenging for the criminal process to avoid being captured and corrupted by special interest groups, because every private party will vie for economic rents by making a criminal out of a rival. If new statutes are merely copies of existing laws with different labels, they are, at best, prescriptions for inefficiency (maybe even useless), or, at worst, fraudulent. If they outlaw the same conduct but multiply the penalties, the punishments become grossly disproportionate to the harm they seek to avoid and empower prosecutors to stack charges against a defendant to coerce a guilty plea. And, for those reasons, having too many criminal laws damages the respectability of the process that enforces them.

   Overcriminalization is becoming an increasingly important issue in modern-day criminal law. Numerous commentators in the academy and elsewhere have discussed this phenomenon, (16) as has the American Bar Association (ABA). (17) Several former senior Justice Department officials have expressed their concern about it. (18) The House Judiciary Committee has looked into it. (19) Even the media has picked up on it. (20)

   Is overcriminalization inevitable? If recent history is a guide, it would seem so. As discussed in Part II, the actors in the political process have come to acquiesce in--some would say spur--the public's demand for more and more criminal laws, along with harsher and harsher treatment of criminals. Can we halt that train? Part III explains that it will be difficult, but not impossible, to find a remedy to overcriminalization in the political process. All of the incentives lead political actors to use criminal law as the first resort to a social problem (and often the second, the third, the fourth, and so on), not the last. In contrast, courts are not part of the warp and woof of politics. As explained in Part IV, the judiciary may be able to intervene, if not to stop the train, at least to slow it down until the public comes around. The public could put a halt to overcriminalization, but it needs to be persuaded and motivated to do so. Perhaps the courts can do just that. Part V offers reasons to hope that a solution to overcriminalization will be found.

2. THE CAUSES OF OVERCRIMINALIZATION: THE INCENTIVES OF THE ACTORS IN THE CRIMINAL JUSTICE SYSTEM

   Overcriminalization is less a problem with the substantive criminal law than it is with the lawmaking process. Each new criminal law or sentence enhancement may be eminently sensible on its own, but may turn out to be utterly unreasonable when it is considered against the background of laws already on the books. In economic terms, the marginal benefit of each new criminal law may be nil, yet the marginal cost that each one imposes could be considerable. If that is the case, if we are at the point where any additional contribution to the supply of criminal laws diminishes public welfare, we ought just to leave well enough alone. (21) We can rely on the stock of criminal statutes we have and ask whether we need more actors in the criminal process (for example, police, prosecutors, judges, defense counsel) or better equipment for the personnel we already have (for example, computers, courtrooms, communications devices). It therefore makes sense to analyze overcriminalization using the tools of standard economic analysis.

   Economic analysis, however, will ultimately not help us scrutinize overcriminalization. The criminal process is not a free market where private parties vie for goods and services with their own dollars. Rather, the criminal justice system is a public good, and the market cannot reliably produce the ideal amount of such goods. (22) The government also is no ordinary monopolist. Unlike cases where a private company holds a monopoly over some industry, the government's "power cannot be eroded by new entry, and no party in the crosshairs of the prosecutor can just walk away." (23) Finally, the elected and appointed government personnel who operate that system are directly or indirectly responsible to the voters through the electoral process, not to the public through the market. (24) Those factors militate against using the "dismal science" as the guide for determining what causes overcriminalization, what makes it "tick," and what can be done about it.

   There is, however, a close cousin to economics that might prove a worthwhile tool. Public choice theory is the use of economic analysis to scrutinize the political process. (25) Public choice theory treats political actors as if they were consumers in a free market seeking to maximize their own utility, rather than the public welfare. (26) Public choice theory does not require us to make altruistic assumptions about our allies, colleagues, neighbors, or friends. Rather, it assumes, in classic Adam Smith fashion, that everyone is selfish, egoistical, and out solely for himself, regardless of the effect on others that his actions may have. The theory seeks to determine just what impact egocentric political actors will have on the public welfare. As it turns out, public choice theory explains perfectly how we wound up in this state of affairs.

   1. Surveying the Battlefield

      1. The Ultimate Cause of Overcriminalization: A Design Defect in The Political Process

         Analysis starts with the legislature, the branch most representative of the electorate, where political power ultimately resides. (27) In our system there can be no crimes without statutes, (28) which only a legislature (with the chief executive's help) (29) can enact. (30) Moreover, as far as overcriminalization goes, legislatures are the biggest offenders. Over the last fifty years, "legislatures have become 'offense factories' that churn out new statutes each week." (31)

         What explains this phenomenon? On occasion, Congress reacts to a crisis (32)--Michael Tonry called such occasions "moral panics" (33)--in the only way that Congress can act quickly: by passing legislation. There are numerous examples of this phenomenon. The kidnapping of Charles Lindbergh's son led to enactment of the Federal Kidnapping Act, also known as the Lindbergh Law. (34) The murders of Martin Luther King, Jr., and Robert Kennedy by firearms led to the passage...