Article

The Crisis of Overcriminalization

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Abstract

Excessive reliance upon the criminal law to per form tasks for which it is ill-suited has created acute problems for the administration of criminal justice. The use of criminal law to enforce morals, to provide social services, and to avoid legal restraints on law enforcement, to take just three examples, has tended both to be inefficient and to produce grave handicaps for enforcement of the criminal law against genuinely threatening conduct. In the case of morals of fenses, it has served to reduce the criminal law's essential claim to legitimacy by inducing offensive and degrading police con duct, particularly against the poor and the subcultural, and by generating cynicism and indifference to the criminal law. It has also fostered organized criminality and has produced, possibly, more crime than it has suppressed. Used as an alternative to social services, it has diverted enormous law- enforcement resources from protecting the public against seri ous crime. Finally, its use to circumvent restrictions on police conduct has undermined the principle of legality and exposed the law to plausible charges of hypocrisy. Pressures to crimi nalize persistently block practical assessments of what the criminal law is good for and what it is not. Studies of the sociology of overcriminalization offer a means of understand ing, and perhaps, to some degree, of controlling, this unfortu nate phenomenon.

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... The impelling mode is founded in law that predates the illegalizing mode. Whether out of ignorance of specific prohibitions (see Husak 2008) or as a result of extreme circumstances (see Kadish 1967), people sometimes act unlawfully for the purpose of meeting a basic material need. "Instrumental crimes" are typically associated with unemployment and absent welfare provision. ...
... Alongside criminologists, socio-legal scholars show that all three versions of criminalization by imputation warrant criticism for over-reliance on criminal law to perform tasks for which it is ill-suited (Kadish 1967). Using criminal intervention to manage disapproved behaviors and "risk" profiles does not meet Husak's (2008) non-trivial harm and wrongfulness constraints, nor his substantial risk and prevention requirements. ...
... Correspondingly, the socio-legal perspective identifies unwarranted applications of criminal law in analogous circumstances. As noted above, Kadish's (1967) investigation of prosecuting homelessness as vagrancy, Husak's (2008) analyses regarding over-criminalization, Tadros's (2008) examination of unjustifiable punishments of predictably adverse circumstances and unequal wealth, and Tomlin's (2013) study of "erroneous convictions" all present parallel socio-legal critiques. The complementarity of the two disciplines' theorizations is transparent, but once again, they are barely developed regarding criminalization-in-practice. ...
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