Overcriminalization’s New Harm Paradigm
The harms of overcriminalization are usually thought of in a particular way—that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject to too much prosecutorial discretion and faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization. Drawing from the fields of criminology and behavioral ethics, this Article makes the case that overcriminalization actually increases the commission of criminal behavior itself, particularly by white collar offenders. This occurs because overcriminalization, by lessening the legitimacy of the criminal law, fuels offender rationalizations. Rationalizations are part of the psychological process necessary for the commission of crime—they allow offenders to square their selfperception as “good people” with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent and powerful rationalizations used by would-be offenders. Put simply, overcriminalization is fostering the very conduct it seeks to eliminate. This phenomenon is on display in the recently decided Supreme Court case Yates v. United States. Using Yates as a backdrop, this Article presents a new paradigm of overcriminalization and its harms.
Assistant Professor of Business Law and Ethics, Indiana University, Kelley School of Business; 2011–12 Supreme Court Fellow, Supreme Court of the United States. The author would like to thank Jamie Prenkert, Angie Raymond, David Hess, Cindy Schipani, Dan Cahoy, David Zaring, Keith Findley, Jessica Roth, Tony Dillof, Richard Re, Josh Bowers, Miriam Northcutt Bohmert, Kip Schlegel, and other participants of the Big Ten Business Law Research Seminar held at Michigan University and CrimFest! held at Cardozo School of Law for helpful comments on early drafts.