Overcriminalization represents a policy shift in the way that Americans address societal problems. In modern times policy makers have determined that many problems which were once left to the citizenry to resolve through informal means or through the civil court system are better suited for the criminal justice system. See The Criminalization of America: How Municipal Budget Shortfalls and Misguided Prosecutors Turn Law-Abiding Citizens into Convicted Criminals. (accessed June 17, 2011). Consequently, legislatures have criminalized otherwise harmless behavior and prosecutors have made it policy to file criminal charges even where the underlying facts are extraordinarily benign. Overcriminalization has been defined as the abuse of the criminal justice system by government officials who encourage or permit the following: “(1) untenable offenses; (2) superfluous statutes; (3) doctrines that overextend culpability; (4) crimes without jurisdictional authority; (5) grossly disproportionate punishments; and (6) excessive or pretextual enforcement of petty violations.” See Erik Luna, The Overcriminalization Phenomenon, 54 Am.U.L.Rev. 703.
Using the criminal justice system to address relatively minor societal issues is problematic for numerous reasons. The criminal system differs dramatically from other avenues of resolving problems in that there is an extraordinarily heightened level of scrutiny of the perceived wrong-doer as well as heightened consequences. As it has been explained, the “consequences for the individual distinguish criminal justice from all other areas of law. The State authority to deprive freedom or even life itself—the most potent action any government can take against the governed—is sui generis. The process of civil justice redistributes wealth to compensate individuals for injuries of tort and contract, none of which is pleasant for the civil defendant. But it almost goes without saying that incarceration (or death, of course) is different in kind, rather than degree, from monetary dispossession, involving an incomparable denial of human dignity and autonomy.” See Luna, supra. With regard to trivial matters or extremely minor infractions that, but for the passion of politicians, could be readily addressed in a less draconian forum, the use of the criminal system becomes all the more excessive.
Not only is the use of the criminal system disproportionate to society’s interest in fixing minor problems, there is an added element. “Moreover, the stigma associated with the brand of “criminal” cannot be equated to the relatively mild designation of “tortfeasor” or “contract-breaker.” “Not only are convicted offenders viewed as outcasts subject to social scorn, but they are also deprived of the rights and benefits accorded to others, including the opportunity for political participation and gainful employment.” “Given the moral gravity of decision-making in criminal justice and the unparalleled consequences that flow from such determinations, criminal liability and punishment must always be justifiable in inception and application.” See Luna, supra.