Public choice theory and overcriminalization

• Published in: Harvard journal of law and public policy Vol. 36; no. 2; pp. 715 - 755
• Main Author: Larkin, Paul J., Jr
• Format: Journal Article
• Language: English
• Published: Cambridge Harvard Society for Law and Public Policy, Inc 22-03-2013; Harvard Society for Law and Public Policy
• Subjects: Crime prevention; Criminal law; Criminal procedure; Economic analysis; Interest groups; Judiciary; Law enforcement; Political aspects; Politics; Public choice theory; Theory
• ISSN: 0193-4872; 2374-6572

"2 In the "bad old days," back when many states operated criminal justice systems that were "a pious charade,"3 so far removed from the textbook ideal as to be a parody of how the criminal process should work,4 academics took delight in identifying systemic flaws in state and local criminal processes and in skewering their law enforcement officials for pursuing an atavistic approach to justice.5 Later, as the Supreme Court roped in the outliers, commentators analyzed the doctrinal development of substantive criminal law6 and the course taken by the Supreme Court in its attempts to iron out the remaining procedural wrinkles in federal and state efforts to investigate crimes and dispose of cases.7 Today, the academy less often analyzes Supreme Court case law than it pursues systems analysis of the criminal justice process.8 The problems depicted are not minor blemishes. The system seems beset by core defects that should have been fixed long ago: prosecutors withholding or concealing obviously exculpatory evidence,9 the government's refusal to fund forensic examinations- DNA tests in particular- that could establish with near certainty whether a given individual committed a particular crime,10 the conviction of innocent defendants represented by appointed defense counsel too swamped with cases and too severely underfunded to properly investigate the charges against their clients,11 and the sight of prisoners stacked like cordwood in the nation's prisons.12 One of those flaws is "overcriminalization." Numerous commentators in the academy and elsewhere have discussed this phenomenon,16 as has the American Bar Association (ABA).17 Several former senior Justice Department officials have expressed their concern about it.18 The House Judiciary Committee has looked into it.19 Even the media has picked up on it.20 Is overcriminalization inevitable?