The Overcriminalization Causes Consequences and Solutions


The criminalization phenomenon exists as a broad topic in the legal fields, and this has continued to draw immense concerns for years. Renowned figures within the criminal justice institutions have addressed the crime, and punishment approaches and strategies in diverse ways and they deliver different explanations. Additional scrutiny has also been presented by contemporary scholars such as Husak and Patterson (2010), Husak (2008), Ashworth (2000), Barkow (2006), Thomas (1998), and many others. However, even with knowledge about all these and a clear sense of the phenomena, it still continues to hit headlines across many justice institutions. A recent report in the United States reflected on numerous offenses within the erratic body of federal law carrying criminal punishment. The reports indicate that these offenses were subjected to what might be referred to as overcriminalization. Other reports too have been released noting similar upsurges in the crime rates at the state level. As suggested by many scholars overcriminalization is not a problem of numerous crimes within the justice sector, rather it is a phenomena, which encompasses a broad array of issues. This paper gets into detail by providing different definitions of overcriminalization, its causes and possible solutions within diverse systems.

The overcriminalization concept

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Scheck, Neufeld and Dwyer (2001) termed overcriminalization as the abuse of the supreme force within a particular criminal justice system. It is reflected as the implementation of impositions or crimes of sentences with any justified reasons. Husak and Patterson (2010) noted that the overcriminalization phenomenon includes far-fetched offenses giving an example of catching lobsters with something else and not a "conventional" trap. Such crimes being subjected to the phenomenon seem so deficient in harmful wrongdoing. The crimes are also viewed as beyond any legitimate rationale and which do not deserve state action (Luna, 2003). The phenomenon has also been established as covering the full range of vice crimes that continue to vex libertarians. This is because there is a noted absence of violation of individual rights in the practice of the respective crimes. From the same perspective, Thomas (1998) described these crimes as being composed of numerous economic offenses for instance violations of antitrust laws. However, in this description it was added that these crimes closely resemble acceptable business behavior which is committed by people in the business field in the pursuit of profit (Robinson & Darley, 1995). Additionally, overcriminalization has been viewed across legal institutions as devices that expand criminal liability to people within the system who are blameworthy (Ross, 2002). The established devices include strict liability offenses, which are viewed as dispensing with blameworthy.

From a different perspective, overcriminalization has been viewed as a phenomenon which allows punishment for collusion in verbal terms coupled with scintilla of action. The phenomenon has also been established as grossly allowing disproportionate penalties, which do not have any relation to the wrongfulness done or issues that underlie the particular crime being investigated and justice being sought (Luna, 2003). Other scholars concentrate on the harmfulness of the commissioned overcriminalization for instance a multiyear prison term passed for an individual caught in possession of a single bullet yet he does not have a firearm or any corrupt motive (Ross, 2002).

Ashworth and Redmayne (2005) noted that, from a distinct point of view, overcriminalization does not produce sentences that contribute to the goals of punishment in a meaningful sense. In fact, it is viewed as a phenomenon which contributes to more crime. Husak and Patterson (2010) noted that the overcriminalization problem may extend beyond the law text as well the implication of the dubious power application by the lawmakers or enforcers. They noted that, there are also other superfluous offenses which would ideally fit in this group. For instance, there are duplicative penal code sections, which subjectively retread the same conduct repetitively, for instance, statutes that prohibit behavior sufficiently addressed by law already. The phenomenon has also been established as to include criminal provisions, which go beyond the established and justified authorities of a given jurisdiction. In this case, Husak (2008) noted that it applies to situations where various entities within the justice systems tend to pass the limits and avoid going as per the texts within the established laws. Stuntz (2001) noted that likewise, the understanding of overcriminalization incorporates other abusive practices subject to policing for instance state agents deploying their comprehensive authority to arrest and search based on trifling offenses, leading to an overreaching or overbearing style of law enforcement that reflect "despotism."

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Luna (2003) noted that the protections against unjust punishment and prosecution of the criminals as the Bill of Rights provides has been challenges by overcriminalization practices. On the same note, the Constitution itself and its structural applications have been challenged in this context by the phenomena. It is apparent that the modern day is the worst hit by overcriminalization practices because of the changing trends in of criminalization within the justice system. Husak and Patterson (2010) also add that the traditional notions, which were established to resolve the overcriminalization practice, have been challenged, and they do not hold any water. The current overcriminalization trends seem to overwhelm the numerous efforts of solving the phenomena and the situation is getting out of hand. In a survey Barkow (2006) noted that approximately 4,500 offenses in the United States Code and many more in the Code of Federal Regulations are clear examples of offenses leading to overcriminalization. The offenses reveal ill-defined conduct, which is a clear indication of overcriminalization within the system.

In summary, the definitions espoused by various scholars of the overcriminalization consists of six identified applications including untenable offenses, doctrines overextending culpability, superfluous statutes, crimes without the authority of the jurisdiction, disproportionate punishments and pre-textual enforcement of violations which are described as petty. The understanding of the overcriminalization phenomenon the leads to an argument on what would be causing the high prevalence of the phenomenon. A discussion on the causes of overcriminalization in diverse situations is paramount. Many scholars have looked into the issue and provided some of the potential causes of the phenomena and how it needs to be dealt with in varying contexts.

Causes of Overcriminalization

With the identified definitions of overcriminalization as identified by the numerous scholars, the mission is to find the reason for overcriminalization phenomenon and why it has been strongly inscribed in the justice systems for ages. There are numerous accounts of this phenomenon and why it is highly prevalent in America and within the American soil. The propensity use of overcriminalization has been identified as being supported by the existent justice systems. However, there are other significant causes, which have been identified in this context. However, the justification of the potential causes is subject to discussion, to verify their application in different contexts.

Relations between Political Influences and Overcriminalization

A substantial and noticed cause of the phenomenon has been ascribed to the escalation of "law and order" politics. Ashworth (2000) noted that in recent years across United States, there have been many issues, which have brought up a one-way ratchet in the governance of the country. As a result, this has churned out an ever-increasing crime rate within the country and has exacerbated severity of punishments (Robinson & Darley, 1995). The severity of punishments has been noticed to be leading to massive injustices on the offenders, and in turn, cases of overcriminalization have been eminent (Luna, 2003). It is noted that the severity of the punishments to some levels are not justified because they are executed without any justifications or arguments.

As a rule, lawmakers are identified as having a strong incentive to include more offenses and penalties in the system within the country. Barkow (2006) noted that, as a result, this has contributed to the major incidences of laws created that are biased to some people. The creation of the respective laws has been identified as subject to political pressures with serious and identified institutions of law being subjected to conform to some laws and practices beyond their control. In fact, Husak and Patterson (2010) noted that political campaign has been misused within the country with significant propaganda underlying the establishment of laws and practices meant to curb crime yet they are all evidence of overcriminalization. Ashworth and Redmayne (2005) noted that fear of crime is enough to drive everyone to vote for candidates with such promises with an idea that this will straighten up things, and it will solve the problem of crime. The same has therefore, being in the frontline of political campaigns, and their application has led to criminalization.

In other words, Husak (2008) puts that overcriminalization has been a resultant feature of strategies in the political arena which only benefits particular groups. Barkow (2006) also noted that individuals and organizations opposing the implementation of policies, which they view as would subject the country to overcriminalization can be ignored even by the populace at no cost because their word does not count. It is noted that members of the civil liberties groups and criminal defense bar are some of the culprits of the political game being played within the country, which brings down their voice concerning overcriminalization (Luna, 2003). After the victory, in the political arena, the laws are codified, and they cannot be reversed which in turn leads to overcriminalization phenomenon.

Contribution of Lawmakers to Overcriminalization Practices

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It is also apparent that lawmakers in the modern world have claimed that the some particular punishments enacted within the justice system reduce crime through incapacitation, and they justify the same on the basis of deterrence (Robinson & Darley, 1995). In this context, this is something that has led to the establishment of the respective punishments which are certainly harsh and not considering the crime levels. The lawmakers' arguments in this case are the resultant of overcriminalization claiming that the legislation of particular punishments subject to offenders what they "deserve." However, the arguments are baseless and they are only subject to emotions, and not critical thinking as Ross (2002) argued because they only make the whole thing worse other than mending the situations and finding better solutions of incapacitation. Ashworth (2000) also noted that the lawmakers receive support from political demagogues, who assert that the conduct being administered produces the "harm" necessary for incapacitation. This has been noted in numerous justice systems across the globe where every law passed has been obeyed even without any objections because the voices of the minority do not count (Luna, 2003). The majorities are heard, and they work out things to their advantage for instance, designing and formulating laws, which leads to overcriminalization practices.

Often, there have been noted aspects that exacerbate overcriminalization especially in the context of competition in the political arena. There are groups which try to compete and rival the staunch politicians within a country, but the result is clear (Robinson & Darley, 1995). Numerous cases as such lead to the politicians abusing the law and forcing the enactment of policies which portray their rival's practices as criminal behaviors and in turn lead to their punishment by law. Husak and Patterson (2010) noted that politicians "smash" the face of their opponents figuratively through enacting punishments to suppress them. The politicians care less of the harmfulness as it applies from their practices but they practice the same to win over their rivals by establishing underlying acts (Luna, 2003).

The irrelevance of the harm principle

Bernard Harcourt a renowned member of the Political Science Department at University of Chicago quoted that "Claims of harm have become so pervasive that the harm principle has become meaningless,", as "the harm principle no longer serves the function of a critical principle because non-trivial harm arguments permeate the debate" (Harcourt 1999). The assertion is also reviewed by other others and revealed as applicable in explaining why overcriminalization still holds strong within the entire system. The subsequent collapse as per Harcourt's phrase leads to the covert power of moralism and the strengthening of the political dialogue on crimes. With this fact, it has come out alive that many powerful voices have led to corrupt practices that exacerbate overcriminalization. Ross (2002) noted that religious notions are also to blame on the collapse of the harm principle. The principle has been deemed as irrelevant in this context because of the evil and ethical values from the religious perspective (Luna, 2003). The religious principles are an ideal excuse for serious applications of the harsh punishments (Harcourt, 1999). The religious believes criminalize acts and thus they are relentless of punishments which they classify as "evil." For instance, abuse of alcohol and drugs, prostitution and gambling is loathed by sweeping religions, which counts as a support to all policies and laws established in favor of overcriminalization.

Husak (2008) noted that, for legal moralists, there is no divide existing between sin and crime. They have a strong argument that the established laws must be based on Christian morals in their enforcement. In this context, established laws, which are rebellious to practices such as drug abuse even with the level of harmfulness being disastrous is still supported by the religions. In this context, the religions do not view these punishments as having any harmful effects but they view them as conforming to the standards (Dripps, 2005). The debate of the harm principle has however, been valued as of use to some levels (Harcourt, 1999). The arguments passed across view the principle as protecting the majority who are referred to as vulnerable. In this context, Ashworth (2000) noted that even with the principle being viewed as exacerbating overcriminalization, the principle works well in stabilizing the life within the community. For instance, it is noted that the principle protects the vulnerable people from smokes of marijuana or cocaine (Stuntz, 2001).

Overcriminalization as Being Caused by Professional and Structural Factors

Ashworth and Redmayne (2005) argued that the greatest boom for law enforcement that leads to overcriminalization is also a result professional and structural factor. In this case, an example to explain it is the professional advancement and growth within a career in the justice system (Luna, 2000). Barkow (2006) noted that increasing the power of an officer, which is subject to career advancement, has contributed to overcriminalization. They noted that even with law enforcers being mandated to "do justice," they also are free within the legal system to act their way. In this case, to some level, they overuse their powers in pursuit of being promoted. Robinson and Darley (1995) noted that in fact, in several occasions within United States, many police officers have arrested criminals and justified their offenses only to be noted as active. Like other professionals within their field of expertise, police and prosecutors also seek the promotions within their jobs, and they value anything that can help in improving their self esteem (Luna, 2003). With the system evaluating who to promote through looking into the number of arrests and convictions a police makes, this is a loophole that leads to overcriminalization practices.

Emphasizing on the same Luna (2000) argued that within the system, the more crimes a police has on the books the higher probability of their promotions. On the same note, it is paramount that, with numerous crimes in the books, attorneys and judges would want to be recognized as productive by resolving the cases the fastest possible (Dripps, 2005). Waldron (1999) noted that in this case, the judges and attorneys do not waste their time in investigations and consideration of justice; they pass sentences to resolve the cases, which obviously is subject to bias. The biasness is what results to overcriminalization as Ross (2002) noted. Stuntz (2001) reflected that the respective parties work hard to eliminate the hard-to-prove cases that would demise their self esteem, and this is also subject to overcriminalization because the punishments passed are not based on merit and reasoning.

Having understood the causes of overcriminalization, it is ideal to look into the consequences of the same. In this case, looking into the consequences brings out the big picture of what underlies the phenomenon and would later help in establishing some solutions.

Consequences of Overcriminalization

Definitely, every practice has some consequences. Overcriminalization as a phenomenon surrounding criminal acts has numerous consequences. It is worth mentioning that overcriminalization consequences are subject to the phenomenon practice and the subjects involved. In this context, it means that the phenomenon affects varying subjects in different ways. Luna (2000) argued that, as the case with criminalization, there are resultant consequences and costs of overcriminalization.

Ashworth (2000) was of the view that distended penal codes, which are a true indication of overcriminalization, have a degenerative effect on the system in which enforcers of law are not impartial bystanders but parties seeking convictions and subsequent arrests. Ashworth and Redmayne (2005) argued that for prosecutors, the phenomenon produces a disparity of power, which is exceedingly dangerous within the system. For instance, there are identified extreme sentences applied as leverage or an effort of the law enforcers to squeeze out information from offenders or who they refer as criminals (Luna, 2003). This is a negative consequence of overcriminalization because it leads to unfair judgments, which subdue the victims. In fact, Stuntz (2001) noted that to some extent, overcriminalization has led to guilty pleas that are unjustified and severely unfair. In such a case, the practice violates the rights of the offenders, and it offends the constitution of the country (Dripps, 2005). The constitution provides the right to trial by jury and the presumption of innocence, but because of overcriminalization this leads to an infringement of the constitutional statues. Barkow (2006) noted that defendants are punished in the process of exercising their rights, and this is total abuse of the constitutional clauses.

Ashworth and Redmayne (2005) added that, for the police, the phenomena of overcriminalization leads to corrupt practices. A compelling example is the immense abuse of the powers invested in them to harass the populace. For instance, the police are known to conceal discriminatory behaviors based on their powers. Ashworth (2000) noted that across the globe few drivers travel without breaking traffic rules, but this does not justify the punishments infringed on them. It is from this assumption that the police tend to criminalize every driver on the road and charging them heftily even for crimes not committed. A study by Luna (2000) looked into the issue and concluded that the police have developed behavior of stopping any driver even without a justified reason because they have been influenced by overcriminalization behaviors being practiced within their profession.

Stuntz (2001) noted that opaque discretion is hard to square at the level of political theory with democratic legitimacy notions and produces a secretive kind of law on the streets that are inaccessible and not accessed by the public. This thus prevents officials in governance from being held accountable for own actions by their subordinates (Harcourt, 1999). The laws also allow prosecutors to externalize the enforcement costs on minorities who are discriminated and their grievances never aired. Thomas (1998) supported the idea by noting that overcriminalization authorizes enforcers of law to levy "racial tax," to the low-income earners, which is a real burden to them. Therefore, this make them submit to all decisions made by the superior that is a real case of discrimination perpetuated by overcriminalization. Robinson and Darley (1995) noted that it is evident across communities that any people have no trust in the government and the administrators, yet they follow their decisions because they are coerced through overcriminalization.

To the extremes, Ross (2002) noted that, as part of the overcriminalization consequences, it reaches a point where the populace within a country loose trusts of the government completely. This is because they view the government as using stringent measures to subdue them and thus refer them as unfair in their practices (Waldron, 1999). Therefore, the mistrust is in itself dangerous because it leads to the people undermining any efforts by the law enforcers no matter how virtuous or valuable it is (Dripps, 2005). The law therefore, becomes counterproductive and does not help the country in establishing appropriate developments required for easy governance of the populace.

Scheck, Neufeld and Dwyer (2001) looked into overcriminalization and added that it encourages poor management and misallocation of limited resources within a country. In this case, they noted that, in an effort to prove a point and criminalize an act, the government uses a lot of resources which could be channeled to other fruitful activities about development. Dripps (2005) supported this argument by arguing that concentrating a lot of resources on robbery, assault, burglary, rape, and governmental corruption would be better than channeling most of these resources on criminalizing a single act that does not benefit the general populace. They gave an example of many governments that have channeled most of the resources in criminalizing prostitution and squandering funds on futile policing on the issue (Harcourt, 1999). Instead, Stuntz (2001) asserts that it would be better if law enforcers utilize the resources to track down other dangerous criminals such as child molesters and rapists. Luna (2000) note overcriminalization practices and plans as ancillary expenses that are only wasted.

Overcriminalization has also been viewed as having social costs, which are part of the negative consequences. In this case, it was viewed that due to overcriminalization, the society has lost the most productive people (Waldron, 1999). These people are the highly industrious and whose visions are discouraged by the greedy in power that have the motive of destroying everyone who seems to overrun them in the system (Luna, 2003). These people therefore, cannot contribute to the system in the most positive way they would desire because they are limited and controlled. Thomas (1998) reflected on overcriminalization and asserted that it even leads to families losing breadwinners. On the same note, it has been clear across the globe that young men have been subdued, and their visions and goals challenged by the policies and laws established by the most powerful within the system (Stuntz, 2001). These people do not have any power to enact their structurally set goals, which could make an immense contribution to the society.

Scheck, Neufeld and Dwyer (2001) argued that overcriminalization brings down the moral force of a country's justice system. In practicing overcriminalization, the system dwells in biasness, prejudice and discrimination. Such a system therefore, loses its credibility to the people, which cannot be mended. Ashworth (2000) noted that in using the term "moral" within this context, it means the philosophical morality that has always embodied with the norms of human life particularly on the use of public power. The enactment and deployment of the criminal sanction targeting behavior that is harmless weakens the moral force of law within a country. Luna (2000) used to handle deterrence issues, and it makes it difficult to justify other explanations of criminal behavior. Therefore, the established law within the systems always struggles to distinguish between what is prohibited and what is proper. As an ultimate result, Stuntz (2001) noted that the situations lead to the inability of the existent laws to prevent harmful behavior or impose punishment.

With the established consequences, it is apparent that solutions need to be established. This is because, these consequences are dire and they hold as a strong challenge for the survival of the entire justice system (Ashworth & Redmayne, 2005). The established solutions should however, be relative to the situation and applies in diverse contexts.

Solutions for Over-Criminalization

Thomas (1998) noted that there can never be amicable solutions in every context and in this case, solutions are dependent on a number of variables. Everyone needs to understand the concept of overcriminalization before proposing any solutions (Dripps, 2005). In the same line of argument, understanding the causes and consequences of the phenomenon is ideal because it helps to establish appropriate solutions, which are applicable in different contexts (Ashworth & Redmayne, 2005).

Over the years, many scholars have looked into overcriminalization solutions as dependent on the levels of practice. One of the most valued solutions proposed in this case is the review of the constitution to bring out establish effective criminal law (Dripps, 2005). With the proper review of the constitution and insertion of clauses that guide the practices within the system, the judicially, which has been blamed for causing overcriminalization is put under check (Robinson & Darley, 1995). After putting the system in check, it means that the corrupt dealings and activities driven by hunger for power are controlled. Husak and Patterson (2010) noted that with appropriate checks, harsher punishments and unjustified laws and policies can be controlled as well as reviewed to prevent discrimination in the system practice. Revitalization of constitutional principles is also notable especially in limiting the powers invested in lawmakers to punish and criminalize acts. In establishing an appropriate solution, Luna (2000) note that there is a need for a functional notice in cases where the government seeks to prosecute offenses.

Investing in government accountability is also a strong solution that could be of high value in establishing appropriate solutions for overcriminalization (Dripps, 2005). Ashworth (2000) argued that for impunity and corruption to end and for a country to end overcriminalization, it is crucial for the system to develop theoretical justification in using criminal sanctions. Such a strategy is crucial as it helps to resolve the enormous problem of overuse of power to discriminate against others and the revival of the harm principle (Dripps, 2005). However, it is noted that these solutions would be inapplicable if a country does not adjust to the new systems and establish new systems in a revolution geared towards fighting overcriminalization (Stuntz, 2001).


Criminalization phenomenon has been established as existing as a broad topic in the legal fields, and this has been noted as continuing to draw immense concerns for years. Renowned figures within the criminal justice institutions have been identified as having tried to address the crime, and punishment approaches and strategies in diverse ways and they deliver different explanations. Other reports in this paper have indicated that on numerous offenses within the erratic body of federal law carrying criminal punishment have indicated overcriminalization. The reports also indicated that these offenses were subjected to what might be referred to as unfair practices, applications and judgments. As suggested by many scholars overcriminalization is not a problem of numerous crimes within the justice sector, rather it is a phenomena, which encompasses a broad array of issues. The paper has also noted some causes of overcriminalization including political influences on the established systems, impunity among the lawmakers, irrelevance of the harm principle, corruption within the system and other professional and structural factors. From the discussion, there are identified consequences of overcriminalization including lose of the moral force of a country's justice system, harmful social costs across the society, increased corruption within the system, misallocation of limited resources, disparity of power and an inefficient justice system within the country. Some possible solutions of overcriminalization have also been identified in this discussion. They include review the constitution and the existent laws, investing in government accountability and an overhaul of the entire system to revive the strong mission of fighting against overcriminalization.