The Dichotomy Between Overcriminalization and Underregulation

58 Pages Posted: 1 Dec 2020 Last revised: 5 Apr 2021

See all articles by Ellen S. Podgor

Ellen S. Podgor

Stetson University College of Law

Date Written: November 29, 2020

Abstract

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?

Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations; as well as their enforcement procedures—the prosecution of crimes or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: 1) those advocating for increased criminalization and regulation; or, 2) those claiming overcriminalization and overregulation.

This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.

Keywords: overcriminalization, regulation, political economy, white collar crime, administrative law,

JEL Classification: K14, K23, K42, K2, K4

Suggested Citation

Podgor, Ellen S., The Dichotomy Between Overcriminalization and Underregulation (November 29, 2020). 70 American University Law Review 1061 (2021), Stetson University College of Law Research Paper No. 2021-2, Available at SSRN: https://ssrn.com/abstract=3739440 or http://dx.doi.org/10.2139/ssrn.3739440

Ellen S. Podgor (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727 562 7348 (Phone)

HOME PAGE: http://www.law.stetson.edu/tmpl/faculty/memberProfile.aspx?id=88

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