“Overcriminalization” is a term increasingly used to describe the growing tendency in America—by federal lawmakers and bureaucrats in particular—to turn to the criminal law as the solution for every problem. As a result of overcriminalization, trivial conduct is now often punished as a crime. The drive to criminalize business conduct continues unabated, with federal officials even deploying the specter of jail time for a company’s negligent behavior, often as a tactical diversion away from the government’s own regulatory incompetence.
Of course, criminal law is supposed to be used only as a last resort to redress severe conduct that society deems deserving of the greatest punishment and legal sanction. And many criminal laws make it possible for the government to convict a person lacking any criminal intent whatsoever. What we desperately need is criminal laws that punish actual criminal acts and that don’t seek to criminalize conduct that is better dealt with through civil and regulatory processes. Continue reading