Democracy and Decriminalization

One of the great and intractable weaknesses of American democracy is its inability to create and maintain rational criminal law policy. Criminal codes expand but don't contract. The result is ever-expanding codes that have moved Americans "ever closer to a world in which the law on the books makes everyone a felon." Part I of the article unpacks the scholarly literature to identify several distinct complaints arising from democratic dysfunction in criminal law -- duplicate offenses, prohibition of trivial or innocuous conduct, federalization of state crime, and the related problem of excessive punishment. Part II maps the biggest reasons for this. Part III offers some explanations for why this picture, unexpected according to prevailing scholarly accounts, is a plausible and sustainable one. Finally, to assess the impact of purported overcriminalization, Part IV considers briefly the effect of broad codes on prominent criminal justice problems, such as excessive incarceration and plea bargaining.