Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law
Engage, Vol. 15, No. 2, 2015, Forthcoming
26 Pages Posted: 9 Nov 2014
Date Written: June 2, 2014
Recently, both practical and doctrinal changes have significantly reduced the degree to which criminal punishment fits rule-of-law ideals. Although far from the only cause, the expansion of criminal sanctions as a by-product of an extraordinary explosion in administrative rulemaking that is backed by criminal liability has helped propel this change. While there are reasons to support criminal enforcement of administrative decision-making, the ways in which administrative rules are adopted, applied, and enforced and the scale of governmental law-making (including administrative rule-making) that has provided the grounds for potential criminal penalties have produced a massive increase in government power that risks serious erosion of individual liberty. This change cries out for immediate attention ― and for changes to the law. This article explores differences between criminal law and administrative law, and between statutory and administrative rule generation and application, explaining how differences between administrative law and criminal law play out (problematically) with respect to much criminal enforcement of administrative rules.
Keywords: overcriminalization, regulation, prosecutorial discretion, prosecution, administrative, delegation, criminal, government, regulatory
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