Download this Paper Open PDF in Browser

Overcoming Overcriminalization

57 Pages Posted: 24 Jan 2013 Last revised: 4 Feb 2013

Stephen F. Smith

Notre Dame Law School

Date Written: January 15, 2012


The literature treats overcriminalization (and, at the federal level, the federalization of crime) as a quantitative problem. Legislatures, on this view, have simply enacted too many crimes, and those crimes are far too broad in scope. This Article uses federal criminal law as a basis for challenging this way of conceptualizing the overcriminalization problem. The real problem with overcriminalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of overcriminalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken the features of federal criminal law that critics of federalization find objectionable — its enormous scope and its severity — and made them considerably worse. By changing how they interpret criminal statutes, the federal courts can help overcome overcriminalization even if Congress continues to be unrestrained in its use of the criminal sanction.

Keywords: criminal law, criminal procedure, federal criminal law, overcriminalization, federalization, rule of lenity, statutory construction, proportionality, law reform, mens rea

JEL Classification: K00, K1, K14, K4

Suggested Citation

Smith, Stephen F., Overcoming Overcriminalization (January 15, 2012). Journal of Criminal Law and Criminology, Vol. 102, No. 3, 2012; Notre Dame Legal Studies Paper No. 13-01. Available at SSRN:

Stephen F. Smith (Contact Author)

Notre Dame Law School ( email )

361 Mendoza College of Business
Notre Dame, IN New South Wales 46556-5646
United States

Paper statistics

Abstract Views