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Faculty Q&A
Posted July 16, 2010

Brown Explores Overcriminalization in the Justice System

Darryl Brown

Darryl Brown worked as an assistant public defender in Clarke County, Ga., before he began teaching law, an experience that triggered his academic interest in criminal justice issues. Now the O.M. Vicars Professor of Law at Virginia, Brown teaches criminal law and evidence, and his scholarship has focused on juries, the role of race in criminal law, corporate crime and capital punishment, among other topics.

Recently his research has turned to overcriminalization in the justice system, and he is editing a book of essays with associate law professor Josh Bowers on plea bargaining.

What is overcriminalization? What makes this an interesting area of research right now?
Overcriminalization is a term to describe the judgment that legislatures have created too many crimes.  It’s necessarily not an objective factual observation.  It’s a judgment about what activity deserves to be labeled and punished as a crime rather than discouraged in other ways, with anything from a civil fine or regulation, especially in commercial contexts, to public health initiatives for some drug use.  So there can certainly be some disputes about what particular crimes are inappropriate, but the overall trend of regulating or responding to undesirable conduct by making it a crime has indisputably led to a total number of crimes on the books far greater than ever before.

Lumped into this topic is also the somewhat separate complaint that American criminal punishment is excessive.  Even for things that clearly should be crimes, our sentencing policies of the last 30 years are much harsher than at any time in American history and harsher than literally any other country in the world, save for a couple of tiny countries we wouldn’t want to be compared with.  Measured as the incarceration rate per 100,000 population, American imprisonment is four or five times harsher than it was in the 1970s, and four or five times harsher than any other advanced democracy.

Why are scholars and lawyers viewing this expansion of criminal law and punishment more critically now?
It’s interesting how a broad array of people from different perspectives have become concerned with overcriminalization in the last decade or more.  It’s probably mostly liberal scholars, lawyers and interest groups who have argued that criminal law is excessive in contexts such as drug crimes, or severe three-strikes sentences for relatively minor thefts, or a wide array of petty misdemeanors that can land people in jail.  Even short sentences can cause someone to lose a job, and then maybe a home, and be unable to help support children.  So we shouldn’t lightly criminalize petty behavior that could be addressed with civil fines or other remedies. 

At the same time, more conservative scholars have emphasized the vast expansion of federal crime, especially when it takes the form of essentially business regulations of everything from environmental protection and corporate governance to deceptive marketing.  A surprising number of those offenses are both felonies and strict liability offenses.  Even though they tend not to be enforced often, they represent a constant option for prosecutors.  There are good arguments that the conduct these statutes address could be handled just as effectively by civil regulation. 

So this is topic brings together people across the political spectrum to some degree.  Nearly everyone agrees that legislatures find it politically easy to create news and politically hard to resist proposals to do so and certainly to repeal criminal laws.  And everyone is seeking to find a principled line, one that legislatures could actually find a way to observe, between what shouldn’t be regulated, what can be regulated civilly, and what should be a crime.

Some attribute harsh sentences to the nationwide drop in crime in recent years.
Explaining drops in crime rates turns out to be incredibly difficult to do with any degree of certainty.  It’s proven to be a humbling endeavor for social scientists and policymakers to come up with explanations for crime rates.  A popular theory in the 1990s was that the rise of a youth cohort, the baby boom “echo,” would raise crime rates, because most crime is committed by young men, but crime rates fell.  Rising unemployment and the recession haven’t pushed crime rates up so far, even though unemployment seems to track crime rates at times.  New York City’s famous policy of “zero tolerance” for minor public order offenses — which jailed a lot of people for things like turnstile jumping and “squeegee” men washing cars at red lights — was credited with New York’s dramatic drop in crime.  But similar drops happened in lots of cities all over the country that had different policing strategies.  The same with sentencing: States actually vary a good bit in sentencing policies, and the list of those with the harshest imprisonment policies is pretty different from the list of those with the lowest crime rates.

What is your perspective on this topic?  How does your research address it?
I have a couple of views on the broad topic overcriminalization generally.  One is that expansion of criminal law is actually pretty selective in terms of the topics or activities that get criminalized.  We tend to overlook the vast amount of decriminalization that has occurred over the last, say, century, often through repeal of criminal laws by legislatures, although changes in First Amendment doctrine have led to the abolition of a set of crimes as well.  Legislatures voluntarily repealed most crimes of birth control, adultery, sodomy and other consensual sex activity before the Supreme Court barred it for the few remaining states in cases like Griswold v. Connecticut or Lawrence v. Texas.  Many gambling crimes have been abolished, and some gun possession crimes as well, thanks in part to lobbying by interest groups.  And all sorts of odd little crimes get repealed quietly from time to time, like the offense of midwives delivering babies without a doctor, or stores opening on Sunday, or the old offenses of buying and selling goods outside of a designated marketplace.  And we’ve even seen a little drug decriminalization in recent years, at least with regard to medical uses of marijuana.  Between interest group lobbying, market forces and changing social norms, lots of crimes disappear.  Criminalization is not as much of a one way street as is sometimes claimed.

In my current work I’m trying to develop a new explanation for the undeniable expansion of criminal law that clearly has gone on, despite these counter-examples.  Especially with regard to federal crimes and especially those arising in regulatory contexts that business groups raise the greatest concern about, I think that the trend to criminalize conduct that could be better addressed with civil regulation is explained in some significant part by the greater legitimacy of criminal law compared to regulatory law and the administrative state.  That is, I think many of these offenses address activities that it’s clear to politicians and others need to be regulated somehow

Criminal law has a long tradition of solid legitimacy as a government endeavor.  Even small-government conservatives accept that enforcing criminal law is a core government function.  In contrast, bureaucracy is something that, at least in the abstract, we complain a lot about, and that doesn’t have the same longstanding pedigree as an essential public task.  So I think often times it’s just easier to enact regulations or bans on certain things by making them crimes than by adding an administrative regulation.  If there’s some truth to that, then it’s full of irony, including irony that affects the prospects for reversing overcriminalization.  Suspicion of government has led us to a cultural preference for the more intrusive, command-and-control form of law — criminal law — over a less punitive, often more flexible alternative.  And it means that, to reverse some of this criminalization, you need to replace it with other law, regulatory law of some form, not simply abolish the criminal statute.

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