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Bria Bush
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Overcriminalization can be defined as the overreliance on the criminal laws to affect the
way people behave. The problems that come from that are legion. It is not only about what we
make illegal, but also how we make it criminal, how the laws work, how theyre enforced, who
enforces them, and who has the decision on whether or not to apply them.
1. DEFINING TERMS
What do we mean when we talk about overcriminalization? Its a word that means many
different things to many different people. At its core, however, it means that too many things are
being defined today as crimes (i.e. things that can land you in jail or prison as opposed to paying
some monetary penalty). Too many things are being prosecuted by the government, particularly
by the federal government which has traditionally has left crime prevention largely in the hands
of the states but has increasingly been the prosecutor of choice when it comes to criminal law
enforcement.
The author sees the concept of criminalization in four points: (1) Congress passes too
many criminal laws, (2) that it passes too many overlapping criminal statutes (i.e. a lot of
different rules govern the same conduct), (3) when criminal laws are passed, Congress does not
clearly define what it takes to violate the law, and (4) Congress imposes far too heavy penalties
Ordinary conduct which no one would think is criminal in nature has a criminal penalty
attached and would, therefore, fit into this category of overcriminalization. This term also refers
to the tendency to take conduct that was previously only considered criminal under state or local
law and to make it a federal crime. It has also led to the diminishing of mens rea standards which
What is meant by tort law and criminal law? One definition is that, in this day and age, when
someone is hurt, instead of just wanting compensation on the tort side, they want to see that
person put in jail. We, as a society, make a distinction between moral culpability and accidents.
For instance, you could be driving a vehicle and tragically kill another person. There is an
enormous, and significant, difference between accidently killing them and running them down
deliberately. We all understand the distinction. The former only involves civil liability; there is
no moral culpability there. The latter includes not only civil liability but also real, moral
culpability. You have the intent to kill, and that is the clearest distinction between civil and
Watch the local or national news on any given day, and one will see that whenever there
is some environmental catastrophe, factory explosion, mine collapse or similar tragedy, the
public tends to focus immediately on criminality as the answer. This mindset is misguided at best
One finds it difficult to understand how the average person can determine what is criminal and
what is not. Currently, we have approximately 3,000 federal criminal laws on the books. (Cali)
It would be exceedingly difficult for a person to find even a criminal defense attorney that knows
them all; much less an average person. But that isnt where it stops. Legal scholars have
estimated that we have 200,000 or more hidden federal laws in our federal regulations. The term
hidden is not used to sound provocative but to highlight the fact that even the government has
been unable to count them accurately. The Department of Justice has been asked to inform the
public how many criminal laws exist and where they can be found. The DOJ was unable to
broadly that most American citizens would be unable to determine what is against the law and
what is not. A person with no legal training would not be able to decipher what constitutes a
crime and, therefore, would be unable to determine if what they were doing was, in fact, illegal.
As of 2013, the United States had an incarcerated population of just over 2.2 million people.
(Glaze and Kaeble) This is an unprecedented amount of individuals. The U.S. has the second
highest incarceration rate; only behind Seychelles, a tiny island nation of fewer than 100,000
inhabitants. (Mahapatra) This begs the question, Are we a nation of bad people? Are we a
nation of criminals? This author does not believe so. This author believes that we are a nation
that has become addicted to the idea that criminal sanctions are the way in which we should run
our society. This is clearly seen in how our response to crimes related to substance abuse or
offenses related to environmental abuse; our first choice is a criminal statute and imprisonment.
Bush 4
This country cannot have a labyrinth of laws that make it impossible for society to function
properly.
Works Cited
Cali, Jeanine. "Frequent Reference Question: How Many Federal Laws Are There? | In Custodia
Legis: Law Librarians Of Congress". Blogs.loc.gov. N.p., 2013. Web. 23 Feb. 2017.
Glaze, Lauren and Danielle Kaeble. "Bureau Of Justice Statistics (BJS) - Correctional
Populations In The United States, 2013". Bjs.gov. N.p., 2014. Web. 23 Feb. 2017.