Prosecutors and Overcriminalization: Thoughts on Political Dynamics and a Doctrinal Response
We know prosecutors take advantage of overcriminalization. Yet we also know they do much to mitigate it. So much, in fact, that they largely keep overcriminalization from becoming a salient political problem that could generate a political response such as code revision. If every law were enforced vigorously, there would be public backlash. But the outrageous laws largely lie in desuetude, for familiar reasons.1 To be sure, this is not always true, and that's why some overcriminalization-of particular sorts, meaning overlapping or redundant crimes and excessive punishment-are still problems that occur randomly and periodically. (How much each sort is a problem is both hard to detect and, because it is a normative call, hard to judge.) Much of overcriminalization's effect is low visibility; it occurs at the level of plea bargaining as in Bordenkircher v. Hayes 2: prosecutors use overlapping or excessive statutes to force plea bargains. But while there is a problem that needs a remedy, there is also evidence of substantial constraint in prosecutor practice. I want to venture an additional explanation-on top of more familiar onesfor why prosecutors exercise some restraint in charging and generally exploiting overcriminalization. Then, I want to suggest a different route to addressing what I think is the key aspect of overcriminalization that prosecutors exploit, which is not criminalization of innocent or marginally wrongful conduct but redundant criminalization of clearly wrongful activity.