Is Over Criminalisation a problem in the USA?

By | September 9, 2021
Is Over-Criminalisation a problem in the USA

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This article titled ‘Is Over Criminalisation a problem in the USA?’ is written by Nilanjana Banerjee and discuss the overuse of law i.e. over- criminalisation in the context of the USA.

I. Introduction

There is no doubt about how important laws are in our society. But the answer to ‘what is law’[1] is the toughest one, while that of ‘significance of law’ is a very easy one. Laws are for the overall betterment of society. It aims at preventing deterrent activity, maintaining a basic discipline in society. Further, it punishes those who have defied the law and created some nuisance. In short, laws are a set of rules which are fragile and capable of being manipulated. Hence, laws should be handled with the utmost care, so that there is no overuse or underuse.

Abuse of law can create distrust in minds of people and they resort to their own ways for punishing lawbreakers. If it happens, the consequences are bound to be draconian.

What else needs to be taken care of is while framing laws, the law-making bodies should keep an eye on the nexus of crime and punishment. The punishment should not be unreasonably high, nor, mere petty crimes should be kept on equal footing with other capital crimes.

II. What is Over Criminalisation?

It means granting more punishment to crimes and also increasing the list of crimes. It is the concept that the criminalisation of activities has turned excessive, the number of laws that regulate the conduct of individuals has increased excessively and, these excessive numbers of laws – regulations now have a detrimental effect on society, especially the offenders of petty crimes.

The concept exactly opposite to this is under criminalisation, where the numbers of legislations are less than what is actually required. This means that the numbers of crimes are very less and the scope of wring doers getting acquitted is higher.

Both of these situations are equally damaging, in the sense that in the former case, the freedom of the individual is highly restricted, while in the latter there is too much freedom. Too much of it can lead to unruliness, chaos.

III. Over Criminalisation In the US

Once a river guard was charged with creating an obstruction in government works just because, he dived into the water to save a drowning child, instead of waiting for the rescue team to arrive for help. Then, in another instance, an outreach group served food to homeless people and the members if that group were arrested as the concerned state considered it illegal to sharing food.

This is what over criminalisation looks like. This petty activity is being called offences but they offer a window into the serious issue of over- criminalisation. This is the result of trying to make criminal law a one- size – fits – all solution for every problem in society. Over criminalisation has resulted in an inappropriate situation.

The framers of the US Constitution were aware of how important liberty is and for that very reason they were concerned that an expansive and voluminous criminal code might cause a threat to the hard-earned liberty. Therefore, the original criminal code had outlawed around 30 crimes. But now, over criminalisation seems to be the new trend, where the criminal law is overused to address every petty societal issue and thereafter punish them.

Recently, congress has enacted a criminal code, not with the intention of protecting national interest but to score points from voters on their political agendas. They do so because they hold the presumption of ‘voters believing that increasing penalty or adding more crimes to the list will solve the problem.’

In the last few decades, the criminal courts have kind of exploded in size and their quality is on constant deterioration. Originally, federal criminal law focussed only on few inherently wrong words like murder, theft, robbery, counterfeiting. But today, the list is ocean-like and it is evident from the numbers. In 1790, when the federal criminal code was originally enacted, it had 30 crimes only.[2]

In the 1980s, it became around 3000 crimes which have increased to 4000 in just 20 years i.e. by 2000 and then to 4450, by 2008.[3] The federal agencies along with congress are to be blamed for this. Many regulations which they lay down are vague for instance, it is a crime to allow the pets to make noise in a national park as it will scare wild animals. Hence such people will be considered to have laid traps for wild animals.

The numbers of crimes and regulations laid down are so huge that the Department of Justice has failed numerous times to catalogue the list. But a rough estimate reveals that there are 5000 statutes and 3,00,000 regulations.[4] By the end of 2019, around 154 new bills have been introduced, which means some more crimes are being added to the list.

However, this problem of over criminalisation cannot be solely attributed to the federal government. A part of this problem is state governments too. Innumerable statutes, ordinances criminalising certain activities are enacted in every state each year. For instance, Arizona has over 4000 statutory offences. Then North Carolina has been adding 318 new crimes almost every year (on average). These numbers also contribute to over criminalisation.

IV. Is Over Criminalisation a problem in the USA?

In America, it is believed that the rule of law is fairly applied and respected and only those who commit crimes are disrespecting laws, but that is not the case. Moreover, the belief is that punishing those offenders who commit crimes is not the only way of abiding by the law. Its proper and judicious use is one such way.

Over criminalisation has led to the incarceration of those ensnared by the criminal codes and criminal justice system, even though such an act does not enhance public safety at times. A huge per cent of the prisoners are non-violent offenders and enforcing laws with unreasonable strictness leads to a conflict with law enforcement.

This over criminalisation started with the well-intentioned legislature trying to solve perceived as well as actual problems. The lawmakers went overboard in doing so and passed almost 50 legislations each year. It has made the US the world’s largest jailer i.e. first in the world in a total number of imprisoned. Also, the US is first among the industrialised nations in the rate of incarceration.[5] Another fact worth mentioning about the US and its criminal justice system is that the nation is house to just 5 % of the world’s population but houses 25% of the world’s prisoners.

Harvard University Sociologist, Bruce Western said that, “prison has become the new property trap. It has become a routine even for poor African American man and their families, creating and enduring disadvantage at the very bottom of American society.”[6]

He said this because African Americans makeup 13% of the US population but form 40% of the prison inmates. At first instance, the numbers seem to support the view that critics are overestimating the problem and making a mountain out of a molehill.

As per US Sentencing Commission, in 2012, 32.2 % of all federal criminal prosecutions were of immigration, 30.2% were for controlled substance crimes, 10.5% were for fraud, 9.8 % were firearms violations, 3.5 % were for non-fraud white-collar crime, 2.4 % were child pornography offences and 1.7 % were for larceny cases, while the ‘others’ category was just 9.7 %.[7]

This shows that there is very little room left for criminalisation. But this argument is not much persuasive. The problem exists and its extent is difficult to determine. It may be worse than what we are assuming. No legislative, executive, judicial or any agency collects statistics of over criminalisation. The US Department of Justice seems to hold no interest in identifying the cases of over criminalisation where the US attorneys should not have brought in the case. Prosecutions of these kinds deprive the criminal law of its respect.

Over criminalisation has shaken the basic structure of law. Every legal professional knows that to constitute a criminal act, mens rea (criminal intent) is a must. But most of the recent statutes implemented at the federal as well as state-level lack the concept of the mental element. These statutes make it possible to convict someone even if such a person acted unintentionally or unknowingly. The most unfortunate thing is that even those people who do their best to remain law-abiding members can still be insecure and might fear that they can be prosecuted anytime.

These are several ways by which over criminalisation creates a problem. Reversing over criminalisation and mass incarceration can help improve the situation. The legislator must resist criminalising such acts which do not fit in the basic understanding of crime. This will reduce the growing number of legislations and thereby curb over criminalisation.


[1] PJ Fitzgerald, SALMOND ON JURISPRUDENCE 9 (12th Ed. 2019)

[2] CHARLES KOCH INSTITUTE, Available Here, (last visited Aug 30, 2021)

[3] THE HERITAGE FOUNDATION, Available Here, (last visited Aug. 30, 2021)

[4] CHARLES KOCH INSTITUTE, Available Here, (last visited Aug 30, 2021)

[5] Charles G. Koch & Mark V. Holden, The Over Criminalisation Of America, Politico Magazine, Available Here.

[6] Id.

[7] Paul Larkin Jr., The Extent America’s Over criminalisation Problem, Available Here.

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Author: Nilanjana Banerjee

National University of Study and Research in Law Ranchi

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