Overcriminalization: causes, consequences, and policy reform

Overcriminalization

Some modern scholars make a strong argument that there has been an overcriminalization of immoral behavior in modern U.S. society. To support their arguments, these scholars point out that there has been an increasing trend to criminalize victimless immoral behavior. Examples of this behavior include issues typically covered by police vice squads, like prostitution and drugs. However, other examples of this behavior include laws that criminalize harassing or annoying behavior, which some legal analysts believe should not be the subject of law enforcement, prosecutorial, or judicial resources. When viewed in isolation, these arguments have merit. However, when viewed as a whole, it becomes clear that there has not been an overcriminalization of immoral behavior. Instead, increasing criminal restrictions on immoral behavior are the logical result of an advanced society that strives to protect the rights of its citizens and has significant knowledge about the harmful effects of seemingly innocuous crimes.

Legal scholar Erik Luna makes a very convincing argument for the overcriminalization of U.S. society. In order to bolster his argument, Luna discusses a list of crimes that he seems to appear punish behavior that should not be illegal. (Luna, 2005). What is interesting is that many of the crimes cited by Luna are clearly not victimless crimes. For example, in his first list of crimes, Luna mentions five crimes concerning animal cruelty. (Luna, 2005). Although there are no human victims in those crimes, it is improper to label those crimes victimless, because violation of any of those crimes results in a clear victim. The fact that animal cruelty has not been a criminal violation for a substantial period of time does nothing to mitigate the seriousness of the behavior involved; domestic violence, spousal rape, and nonforcible rape have carried criminal penalties for a shorter period of time than some types of animal cruelty, but few would argue that such behavior should not be criminalized. Even if one does not sympathize with the animal victims, the fact is that advances in scientific and sociological research have both demonstrated a link between cruelty to animals and other criminal behavior. Therefore, even Luna's own definition of overcriminalization, which he considers "the abuse of the supreme force of a criminal justice system- the implementation of crimes or imposition of sentences without justification," clearly does not apply to these crimes. (Luna, 2005). There is a clear justification to enforce crimes against animals.

Of course, Luna's entire argument is not based upon crimes against animals. He mentions a plethora of other crimes, many of which do not appear to have the same type of justification. For example, he cites a law that prohibits spitting in public. (Luna, 2005). Such a prohibition may be ludicrous, but the concept of overcriminalization does not depend solely upon whether or not behavior is criminalized. Society cannot be said to be plagued by overcriminalization unless truly overly restrictive laws are enforced at the same rate of offense as other laws. While there are numerous laws on the books, which are aimed at targeting generally harmless behavior, the fact is that there is little empirical evidence to demonstrate that these crimes are enforced at all, much less at a substantial rate. Furthermore, while many of these crimes may carry incarceration as a possible punishment, the reviewed scholarship did reveal an epidemic of prosecution and punishment for ridiculous crimes.

On the contrary, the crux of Luna's argument seems to rest on the vice crimes, and his proposition that trading in sex or drugs is a harmless crime. In fact, the criminalization of "vice" behavior has long been the subject of legal scholarship regarding the overcriminalization of society. David Richards discussed the criminal punishment of vice behavior over 20 years ago, arguing that criminalizing such behavior was unduly restrictive of civil liberties. (Richards, 1986). However, to make a successful argument that the criminalization of vices is an example of an epidemic of overcriminalization, one has to ignore the stark realities of most vice crimes. When one factors reality into the discussion, it becomes extremely clear that most of these vice offenses are not victimless crimes.

Before discussing crimes regarding sexuality, it is important to distinguish between those laws that are currently enforced and those that are not being actively enforced. For example, there are some laws that still punish engaging in consensual homosexual behavior, certain consensual sexual acts committed in privacy between adults in non-commercial transactions, or the use of sexual aids. While these laws exist, the fact is that there simply is not a push towards the investigation, prosecution, or punishment of these crimes. On the contrary, even challenges to the constitutionality of these laws often only arise after those who oppose such laws have arranged for an arrest and prosecution. Therefore, it is improper to consider this category of crime in a discussion of overcriminalization.

However, law enforcement, prosecution, and the judiciary do expend a tremendous amount of energy targeting commercial sexual transactions. Opponents of this cite the fact that many of those transaction occur between adult prostitutes and adult clients. Such an argument ignores the cold, hard facts behind prostitution. First, it must be acknowledged that if a person truly desires to grow up and become a prostitute, he or she can move to Nevada and work in a regulated brothel. However, the fact is that most people do not turn to prostitution as a career option in adulthood. On the contrary, the vast majority of prostitutes enters the profession as teenagers, and does so out of desperation. Most of them are fleeing abusive home situations, and the majority of them have some type of chemical dependency. Because of these circumstances, it is difficult to label their behavior consensual. Furthermore, the adults involved in the sexual transaction are not the only people harmed by the behavior. For example, a spouse who visits prostitutes places their spouse at a greater risk for sexually transmitted diseases. In addition, prostitutes are frequently the victims of crimes ranging from petty theft, to physical abuse, rape, and even murder. Finally, all women in society suffer when men are allowed to purchase sexual favors from some women; transactional sexual systems make actual sexual equality an impossibility. Those who argue that prostitution has existed since the beginning of history and will continue to exist are not giving a valid argument for its legalization; rape, incest, assault, and murder have existed for that long as well.