By Melissa Hamilton
Troubles arise when a society has too many laws, a sort of legal inflation or legal creep. When the situation regards too many criminal laws, the more specific term is overcriminalization. It is worse than other forms of legal inflation, because there is something special about criminal law. Unlike other bodies of law or social control systems, criminal law imposes public condemnation and punishment upon offenders.
Consider all the laws passed in the last few decades to deal with drug use, drunk driving, sexual activity, and family abuse. In England, for example, over 3000 new crimes were created in the decade between 1997 and 2006 alone. In the United States, the federal criminal code is so large that when a House Committee task force asked the Congressional Research Service to count the number of criminal laws, the response was that the job was too resource intensive to undertake. Now the age of the Internet continues to spawn new criminal laws to try to regulate online harm.
Problems with overcriminalization
Creating too many crimes can breed disrespect for the rule of law. It distracts police and prosecutors from pursuing serious offenses. It can impose high costs both on the public and on individuals without generating any benefits. Excess criminal laws additionally often mean these laws aren’t known to the public, and therefore the underlying acts may not be deterred. It may seem unfair to punish someone for an act he or she reasonably did not know was a crime.
How does one know if overcriminalization exists? To understand a law as representing overcriminalization (or not), one must first understand what conduct may properly be criminalized.
Two competing philosophies offer ideas around what acts should be considered criminal. They are (1) the harm principle and (2) legal moralism.
Under the harm principle, acts should be made criminal only if they cause harm to another person. Under this theory, an act should not be legally prohibited if it causes harm to oneself or has negative effects on another person who has consented to the act.
From the standpoint of legal moralism, society may prohibit conduct that is considered immoral. Indeed, in a democracy the majority has the right and authority to determine which behaviors it considers immoral and to punish those who engage in them.
Yet the belief that an act causes harm or is immoral, respectively, is not always a sufficient reason to criminalize it. Both theories hold that criminalization is less justifiable if it may be invasive of individual privacy. In addition, both theories take the view that criminalization may not be warranted if doing so causes more harm than good – as is increasingly being argued, for example, in regard to many kinds of drug use.
Why does overcriminalization occur?
Laws are not passed in a vacuum. Legislators are politicians. They often have a focus on reelection such that passing new forms of crime may be perceived as “politically pragmatic” in the following sense:
Seeking to make political hay, some legislator proposes a new law to make this or that a major felony or to raise the penalty or otherwise tighten the screws. Since other legislators know well that no one can lose voter popularity for seeming to be tough on crime, the legislation sails through in a breeze. That the chances of the legislation working to reduce crime are exceedingly low, and in some cases of it doing harm are very high, scarcely seems to be a relevant issue.
Another reason for the existence of overcriminalization in Western countries in recent decades is the conservative turn from the 1980s toward reducing social welfare programs. These governmental withdrawals were generally not replaced with private resources, and thus the problems that the programs targeted often worsened. As a remedy, politicians turned to the criminal law as a response to social ills.
In other words, legislatures are criminalizing social problems rather than dealing with them substantially through social and economic programs. In this way, overcriminalization may represent a method for authorities in “governing through crime.” Yet this strategy also literally creates more criminals amongst its citizens while generally failing to solve the identified problems.
Melissa Hamilton is a Senior Lecturer of Law & Criminal Justice at the University of Surrey School of Law. She holds a J.D. and a Ph.D in criminology/criminal justice from The University of Texas at Austin. She is a member of the American Psychological Association and an affiliate of the Institute on Domestic Violence and Sexual Assault. She is a former judicial clerk on the United States Court of Appeal for the Fifth Circuit and a former editor of the Texas Law Review. Dr. Hamilton has published dozens of articles in law reviews and scientific journals on a variety of topics. Main areas of research interest are domestic and sexual violence, trauma responses in victims of assault, risk assessment practices, policing, sentencing, and corrections.
 Todd Ruger, Way Too Many Criminal Laws, Lawyers Tell Congress, Legal Times, June 14, 2013 1:18PM.
 Nicola Lacey, Historicising Criminalisation: Conceptual and Empirical Issues, 72 Modern L. Rev. 936, 940 (2009).
 Ely Aharonson, “Pro-Minority” Criminalization and the Transformation of Visions of Citizenship in Contemporary Liberal Democracies, 13 New Crim. L. Rev. 286, 301 (2010).