Public choice theory and overcriminalization.

Author:Larkin, Paul J., Jr.
Position:III. The Limited Political Remedies Available to Stem and Reduce Overcriminalization through Conclusion, with footnotes, p. 756-793

    1. Uphill Battles

      In an ideal world, there would be a way to dissuade or prevent legislators from endlessly passing additional unnecessary criminal laws. For example, Congress could require that all new bills adding to the penal code be referred to the Senate or House Judiciary Committee, to allow those presumably expert committees to filter out superfluous bills. Any such reform, however, is difficult to achieve for entirely political reasons. Members who sit on other committees are reluctant to cede the authority to add criminal sections to their own regulatory bills. Having that ability gives every legislator skin in the game and an opportunity to entreat the Director of the FBI to allocate additional resources to fight bank fraud, home-loan fraud, securities fraud, or any other kind of fraud. (180) Policy-based appeals to members also likely would be futile. Too many members want to drop new crime bills into the hopper to appeal to constituencies interested in crime or to fend off conservative challenge on that issue, and self-interest generally trumps the public interest.

      Nor can we expect that the cost of overcriminalization will exert discipline on Congress. The cost of law enforcement, particularly corrections, constrains the states more than the federal government. (181) State penal codes address a broader range of conduct than federal law because states must address the average, everyday "street crimes" that the federal government lacks jurisdiction to prosecute. (182) The cost of law enforcement, particularly operating a correctional system, (183) is a considerable part of a state's budget. State legislators also must decide how much law enforcement taxpayers can afford, because states must balance their budgets annually. (184) By contrast, the cost of operating the federal prison system is a miniscule component of the federal budget, (185) and the federal government is under no requirement to balance its budget--the government can borrow to make up for a deficit. (186) Finally, both parties are responsible for overcriminalization, which means that there is no political check on increased spending for politically favored programs. (187) The upshot is that in this very-less-than ideal world, there may be little that can be done to resolve this problem on Capitol Hill.

      But there is hope. Legislators in both chambers have introduced bills that would cut back on some of the overreach found in present-day law. Senator Rand Paul and Representative Paul Broun each introduced a bill entitled the Freedom from Over-Criminalization and Unjust Seizures Act of 2012 (FOCUS Act) that would repeal the criminal penalties from the Lacey Act, (188) a statute that makes it a crime to import flora or fauna in violation of a foreign nation's law. (189) Those bills reveal that at least some members of Congress are concerned about the overuse and misuse of the criminal law, and are willing to do something about it. (190) The introduction of those bills is a small step, but it is a step in the right direction. As a result, although persuading Congress to halt further overcriminalization (to say nothing of rolling back existing criminal laws) would be quite an uphill battle, the task may not be Sisyphean.

      One scholar has offered a procedural route to criminal justice reform. Professor William Stuntz recommended, among other things, that we should take some of the starch out of our sentencing laws, that we should restrain prosecutorial charging discretion, and that the criminal justice system should become more decentralized. (191) The first two recommendations, however, ask legislators and prosecutors to agree to an amicable divorce, which is unlikely to happen any time soon. The third recommendation would enable community members sitting on juries to become more directly involved in the criminal justice system. That proposal is a reasonable one for cases that go to trial, although there are a few kinks that need to be worked out. (192) Unfortunately, however, most cases are resolved through plea-bargained guilty pleas, not trials, and that proposal does little to prevent legislators from turning out more criminal statutes or prosecutors from doubling down on a defendant by adding ever more charges to an indictment. By itself, that recommendation also will not solve the problem. (193)

    2. Likely Dead Ends

      1. Traditional Approaches

        It is unlikely that an appeal to the leadership of the two major political parties could prove successful at present. Politics in the United States is highly decentralized. National party platforms matter far less than the name recognition, record, agenda, promises, and charisma of individual candidates. The national committee for each political party has weak control over candidates and their positions and generally lacks the ability to discipline its members for taking positions that the leadership views as unorthodox or wrongheaded. (194) Admittedly, the national committee can decide whom to endorse in a primary, whom and how much to fund in the general election, whether to persuade well-known figures (e.g., the current or a former president) to appear at campaign events, and what committee assignments to offer elected officials. Those carrots, though, may offer little incentive to a well-known or well-funded candidate, especially one with ready, independent access to the media, or one seeking election or re-election in a "safe" district or state. Leadership also may find it difficult to dislodge incumbents, especially those with long tenure, from chairs or positions on powerful committees, because of longstanding relationships that incumbents have with their colleagues. The consequence is that the parties possess little ability to control candidates who go "rogue." (195) Accordingly, even if party leaders were committed to reigning in overcriminalization, they are poorly equipped to do so.

        There also is no reason to assume that either major party wants to reduce overcriminalization. For good or ill, since 1970 the parties have relied more and more on the opinions of the public than the views of criminologists and other members of the academy, and the public has demanded punitive treatment of criminals, without regard to the efficacy of or results produced by that approach. (196) Accordingly, politicians ditched the rehabilitative ideal in favor of incapacitation and implemented that approach through increasingly punitive sanctions for any number of crimes. Indeed, the last thirty years have witnessed a contest between the two parties over their ability to be and appear more punitive than the other. Turning to national parties to stem overcriminalization, therefore, likely would be a dead end.

        In theory, the presence of an opposition party or an election opponent could offer some hope of restraining this tendency. History, however, is to the contrary. Overcriminalization is a bipartisan problem. (197) Sometimes it becomes a bidding war as each party hopes to show that it is "tougher" and more committed to eliminating crime than the other. (198) "In other fields, legislation is about tradeoffs and compromises. When writing and enacting criminal prohibitions, legislators usually ignore tradeoffs and rarely need to compromise." (199) Whatever benefits our two-party system may create in other contexts, that system does nothing to halt the trend toward ever more criminal laws and ever-stiffer punishments.

        In the federal system, the Attorney General could refuse to participate with Congress in this mutual back-scratching enterprise because he possesses the ultimate authority to direct the conduct of federal criminal litigation. (200) Two former Attorneys General--Edwin Meese and Richard Thornburgh--have been outspoken and repeated critics of overcriminalization. (201) But no sitting Attorney General yet has done so, and it is easy to see why. The Justice Department is a large entity (202) and has a strong institutional interest in having as much charging discretion as possible and as many charging options as Congress can provide. (203) The Department has strong allies on Capitol Hill who often are willing to give the Department whatever it requests. The fear of being seen as "soft on crime"--and of facing campaign ads making that allegation on television--also motivates members to give the Department (to say nothing of the Director of the FBI) the benefit of the doubt on many issues. Finally, because the Attorney General is a presidential appointee, (204) the presidents in office over the last forty years ultimately bear responsibility for the Department's positions, and no president has asked Congress to cut back on the expansion of federal criminal law.

        The criminal defendants and their attorneys are no more likely to be successful. Convicted felons are pariahs; accused defendants are only slightly less disreputable. The number of past and current offenders may be sizeable, but they are socially disorganized and politically powerless. Many cannot vote, and most lack the skills, resources, or interest to mobilize. The media is unlikely to champion the case of more than one or two people who can prove that they are innocent, often through DNA evidence. Established private organizations, such as the Innocence Project or the National Association of Criminal Defense Lawyers, have limited assets, some of which must be spent protecting the rights of people not yet charged with a crime.

        We are not likely to see the birth of new public interest organizations devoted to the repeal of old criminal laws. Any person or company who contributed to such a group would be pilloried in the media for trying to immunize their own activities. Government-created organizations equivalent to the federal public defender service also would be unlikely to oppose the passage of new criminal laws. The public would be outraged at the...

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