Overcriminalization's New Harm Paradigm

51 Pages Posted: 4 Mar 2015 Last revised: 16 Oct 2015

See all articles by Todd Haugh

Todd Haugh

Indiana University - Kelley School of Business

Date Written: March 3, 2015

Abstract

The harms of overcriminalization are usually thought of in a particular way — that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject to too much prosecutorial discretion and faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization. Drawing from the fields of criminology and behavioral ethics, this Article makes the case that overcriminalization actually increases the commission of criminal behavior itself, particularly by white collar offenders. This occurs because overcriminalization, by delegitimatizing the criminal law, fuels offender rationalizations. Rationalizations are part of the psychological process necessary for the commission of crime — they allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent and powerful rationalizations used by would-be offenders. Put simply, overcriminalization is fostering the very conduct it seeks to eliminate. This phenomenon is on display in the recently decided Supreme Court case Yates v. United States. Using Yates as a backdrop, this Article presents a new paradigm of overcriminalization and its harms.

Keywords: overcriminalization, overfederalization, white collar crime, rationalization, neutralization, criminal law, business law, supreme court, yates, business ethics, criminology

JEL Classification: K14, K22, K29, K42, Z00

Suggested Citation

Haugh, Todd, Overcriminalization's New Harm Paradigm (March 3, 2015). 68 Vanderbilt Law Review 1191 (2015); Kelley School of Business Research Paper No. 15-38. Available at SSRN: https://ssrn.com/abstract=2573042

Todd Haugh (Contact Author)

Indiana University - Kelley School of Business ( email )

1309 East Tenth Street
Bloomington, IN 47405
United States

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