Criminal Law’s Unfortunate Triumph Over Administrative Law

Abstract

The excessive breadth of criminal law is an enduring basis for criticism among criminal law scholars and policy advocates. Claims of excess, especially with regard to federal law, take predominantly two forms: (1) some conduct is criminalized that should not be, and (2) some appropriately criminalized conduct imposes liability without sufficient proof of mens rea as a means of assuring blameworthiness. The latter problem is amenable to politically plausible reforms, as others have developed and this essay summarizes. The former, on the other hand, is not. Yet an explanation for that trend - and, in fact, long tradition - of expansive criminal law highlights a path for its curtailment. Much criminalization addresses social risks and harms that administrative law and regulatory policy could address effectively. Criminal law initially served regulatory ends in the absence of a significant regulatory apparatus. As administrative law and regulatory capacity grew, they should have displaced much criminal law. But they did not, for reasons that include criminal’s underlying presumptive legitimacy as a means of state power and - at least in the federal realm - an underlying skepticism of administrative law’s efficacy and legitimacy. Greater resort to, and comfort with, regulation is a critical component in a strategy to reduce criminal law’s excesses.