The Crisis of Overcriminalization

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.