December 13, 2011 | Legal Memorandum on Legal Issues
The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization”—that is, the promiscuous use of the criminal law to remedy numerous perceived social ills by relegating them to the principal government actors in the criminal justice system (police, prosecutors, defense counsel, judges, and jailers) in order to regulate through criminalization. Four of the hallmarks of overcriminalization are:
This phenomenon is likely to lead to a variety of problems for a public that is trying to comply with the law in good faith. At bottom, the flaws in overcriminalization are much the same ones that the Supreme Court long has identified in unduly vague criminal laws: They render it impossible for an individual to understand where the line of criminality lies (indeed, the average person’s ability to understand and comply with a legal code varies inversely with its prolixity and reticulation); they empower prosecutors to make arbitrary charging decisions and coerce parties into pleading guilty by threatening them with potentially massive sentences should they stand trial; and, in cases that go to trial, they leave to the courts the job of deciding after the fact whether someone broke the law, a job that is tantamount to deciding whether to shoot the survivors.
Most of these problems have been discussed extensively in other publications, such as “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” a report prepared by The Heritage Foundation and the National Association of Criminal Defense Lawyers. But one problem created by overcriminalization of American life has not been given the same prominence as the ones noted above: Overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Those difficulties are discussed here.
Legislators have few options in addressing criminal justice problems. To start, they cannot get involved in the decisions in a specific case. The Due Process Clause of the Constitution quite rightly keeps legislators from meddling with specific defendants in particular cases, and any attempt to do so can (at least potentially) compromise the government’s ability to prosecute that party.
Passing legislation, approving law enforcement agencies’ budgets, and conducting public oversight hearings are the principal tools that legislators can employ to affect the crime rate, but those options have their limitations. The last two options work only indirectly by, for example, increasing the number of investigative and support personnel or spurring the existing ones to do a better job. Only through legislation creating new crimes, upping the sentences for offenses already on the books, or reducing the procedural or evidentiary burdens on the police and prosecutors can a legislator have a direct effect on crime.
Even then, however, there are additional limits. The Ex Post Facto and Bill of Attainder Clauses (Art. I, §9, Cl. 3 and § 10, Cl. 1) keep legislators from pursuing the most direct ways to deal with crime: passing a new criminal statute making past conduct an offense, retroactively enhancing the penalties already on the books, or making an outlaw out of a specific individual in a statute itself.
Each of these limitations serves legitimate, important purposes. Ironically, though, they sometimes can wind up channeling legislators into waters that create problems at least as serious as the ones that the U.S. Constitution seeks to avoid.
A New Set of Problems
Since the 1960s, the Supreme Court of the United States has regulated the investigative and trial processes. Using the Fourth, Fifth, and Sixth Amendments as the vehicles, the Court has fenced in nearly every investigative and trial technique—e.g., searches, seizures, arrests, interrogation, lineups, discovery, questioning or immunizing defendants and witnesses, and so forth—with a variety of different rules. The Court also has made clear that Congress cannot tamper with the rules it has created, such as the now-(in)famous Miranda warnings.
But the Court has left unregulated the legislature’s prerogative to define crimes and affix punishments, as well as a prosecutor’s ability to exercise discretion in charging and plea bargaining. As the late Harvard Law School Professor William Stuntz has noted, the result is that, in today’s criminal justice system, those two players have become closer allies than ever.
Here is how such an alliance develops: Some legislators, acting on the presumption that prosecutors will exercise judgment in deciding how far to push the edge of the envelope, will write broadly worded statutes in order to maximize the prosecutor’s discretion. Other legislators, assuming (and perhaps hoping) that expanding criminal liability will affect only those near the periphery of the laws in existence, also will support expanded criminal liability and lengthier sentences because they, too, do not expect prosecutors to go hog wild with their enhanced weapons.
The result is that even legislators acting solely with the public interest in mind will wind up enacting new criminal laws that no one expects to receive the broad construction that their text permits. Of course, other, perhaps less noble-minded legislators will see the process as a no-lose situation: They create the appearance of having remedied a social ill without any risk of a backlash from a politically powerful constituency and without the burden of deciding how to apply the law on a case-by-case basis.
By contrast, there is little constituency for cutting back on the reach of the criminal law. Loosening criminal procedures can be justified on the grounds of de-handcuffing the police or bolstering the efficiency of the trial process. Tightening those same procedures can be supported by the need to protect the innocent or everyone’s civil rights. Broadening the reach of the criminal law can be sold as an effort to reach miscreants that the courts mistakenly (or involuntarily) let walk or as an attempt to adapt old laws to new criminal schemes. That much is fairly straightforward.
What argument, however, will persuade legislators to cut back on a prosecutor’s or court’s generous reading of a criminal statute or to reduce the number of years of imprisonment that a law authorizes? That the legislature previously got it wrong? That the courts erred in sending guilty people to jail? That the prosecutor abused the authority that the legislature gave him and the courts upheld? After all, the courts are widely seen as being experts in interpreting criminal laws; legislators ordinarily support prosecutors’ desire to maximize the weapons at their disposal in the interest of fighting crime; prosecutors ordinarily serve the public good when making charging and plea decisions; and, if the law were unquestionably just and justly prosecuted without exception, there might be no better example of letting the guilty go scot-free.
As a result, few legislators may see any benefit from being “soft on crime,” and if legislators do not care about overcriminalization, why should the public?
“Hard” vs. “Soft” on Crime: A Misguided Legislative Tendency
Why is the legislative tendency toward overcriminalization misguided? There are three short answers.
First, there is the principle that Chief Justice John Marshall articulated in Marbury v. Madison in 1803: “The Government of the United States has been emphatically termed a government of laws, and not of men.” Leaving the interpretation of criminal laws to regulatory agencies, prosecutors, and courts turns that proposition on its head. The legislatures themselves should define the laws so that the average person knows just where the line is that divides lawful from unlawful conduct and just how closely it can be approached.
Second, having overly broad laws or laws whose elements are filled in by politically unaccountable regulators runs afoul of the criminal law tenet, traceable to the laws of the ancient Greeks and often voiced in the Latin expression nulla poena sine lege, that there is no punishment without law. A law that is not readily available to or understandable by the average member of the public is tantamount to no law at all. In fact, the proposition that the public should be able to—and can—find, read, and understand the law, particularly the criminal law, is the moral foundation for the well-known proposition that “ignorance of the law is no excuse.” Take away the practical ability to read and understand the law, and the moral justification for using the criminal law as a tool for regulating conduct is also lost.
Third, making the same conduct a crime under numerous federal criminal statutes allows a prosecutor to threaten a defendant with a potentially massive sentence if he forgoes a plea offer and goes to trial. Absent case-specific proof of racial animus or some other invidious intent, the Constitution does not bar a prosecutor from making good on his promise to throw the book at a defendant who declines a plea offer. Thus, there is a good deal to be said for reining in the overcriminalization process.
There is one other point worth raising separately: The modern practice of making more and more conduct criminal or upping the penalties already on the books for existing crimes can be a misguided way to run a railroad. There already are thousands of federal criminal laws on the books—so many, in fact, that no one knows exactly how many there are. But Senators and Representatives introduce bills that would create new crimes during every session of Congress.
Why? Are the laws on the books inadequate to the task? There is no doubt that technical or scientific advances (e.g., computers) can require new criminal legislation to address novel problems, and changing societal mores can justify revisiting familiar laws (e.g., spousal abuse). But does this nation really need dozens of laws (with more recommended by each new Congress) dealing with lying, cheating, stealing, and fraud? Does America need to add a criminal penalty for the violation of every new commercial, safety, and environmental law? Does adding to the length of the terms of imprisonment for old crimes truly add anything to the retributive, deterrent, and incapacitative effect of the law? If it does, is that benefit worth its costs?
Perhaps legislators should turn their attention to engaging in oversight of the federal, state, and local law enforcement agencies that they arm with new weapons every time one of those bills is signed into law. Perhaps legislators should inquire what beneficial effect society is getting from the legal changes that have occurred over the past quarter-century before adding to the corpus of criminal law. Perhaps legislators should conduct, or demand that someone else accomplish the task of completing, a cost-benefit analysis of the existing body of criminal law before making it bigger.
That type of work is difficult and takes a long time to do well, but maybe it is more important than simply passing a new criminal law and declaring victory over, or even just taking credit for dealing with, a particular crime problem.
Public Awareness: The Key to Combating Overcriminalization
The Supreme Court has rewritten the rules of investigation and trial practice, and those rules will keep some innocent parties from being wrongly convicted, but regulating the procedure used by the police and lawyers will accomplish only so much. As long as lawmaking, charging, and plea bargaining are off-limits to the courts, there will be a risk that innocent parties will be charged with conduct that cannot and should not reasonably be deemed a crime but that exposes them to such a terrifyingly long prison term that, as a practical matter, they have little choice but to accept a plea deal offered by the prosecutor.
The legislative dynamic is not likely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. The public needs to head off such laws before the momentum for their passage becomes overwhelming. And that can happen only if the public is aware of the legislative side of this problem.
Brian Walsh and Tiffany Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, Heritage Foundation Special Report No. 77, May 5, 2010, available at http://www.heritage.org/research/reports/2010/05/without-intent.
 See Miranda v. Arizona, 384 U.S. 436 (1966). In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court rebuffed the argument that Congress had effectively repealed Miranda in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, Title II, § 701(a), 82 Stat. 210 (codified at 18 U.S.C. § 3501).
 See, e.g., William J. Stuntz, The Collapse of American Criminal Justice (2011); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001). The discussion that follows relies on Professor Stuntz’s cogent description of defects in today’s marriage of criminal law and politics.
Professor John Baker argues persuasively that both parties are to blame for the problem of overcriminalization: “[Law professor John S.] Baker blamed Republicans as well as Democrats for the trend, saying that both parties fuel it. One-third of about 4,200 federal crimes on the books have been passed since 1970 and Republican President Richard Nixon's ‘war on crime,’ he said.” Kevin McKenzie, Law Professor Slams Expansion of Federal Crimes, The Commercial Appeal, Oct. 25, 2011, available at http://www.commercialappeal.com/news/2011/oct/25/law-professor-slams-expansion-federal-crimes/.
5 U.S. (1 Cranch) 137, 163.
 See Rogers v. Tennessee, 532 U.S. 451, 467–68 (2001) (Scalia, J., dissenting).
Under the Blockburger test, Congress can impose multiple sentences for the same conduct under different laws as long as each statute requires proof of a fact that the others do not. See Blockburger v. United States, 284 U.S. 299, 304 (1932); see also, e.g., Texas v. Cobb, 532 U.S. 162, 173 (2001); Rutledge v. United States, 517 U.S. 292, 297 (1996); Brown v. Ohio, 432 U.S. 161, 164–66 (1977).
 See Bordenkircher v. Hayes, 434 U.S. 357 (1978).
 See Dick Thornburgh, Overcriminalization: Sacrificing the Rule of Law in Pursuit of “Justice,” Heritage Foundation Lecture No. 1180 (Mar. 1, 2011), available at http://thf_media.s3.amazonaws.com/2011/pdf/hl1180.pdf.
 See, e.g., Stuart P. Green, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime 152 (2006) (“Under American law, for example, there are now dozens of statutory provisions that criminalize offenses such as mail fraud, wire fraud, bank fraud, health care fraud, tax fraud, computer fraud, securities fraud, bankruptcy fraud, accounting fraud, and conspiracy to defraud the government.”) (footnote omitted).