Public Choice Theory and Overcriminalization

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III. THE LIMITED POLITICAL REMEDIES AVAILABLE TO STEM AND REDUCE OVERCRIMINALIZATION

A. Uphill Battles

In an ideal world, there would be a way to dissuade or prevent legislators from endlessly passing additional unnecessary criminal laws. For example, Congress could require that all new bills adding to the penal code be referred to the Senate or House Judiciary Committee, to allow those presumably expert committees to filter out superfluous bills. Any such reform, however, is difficult to achieve for entirely political reasons. Members who sit on other committees are reluctant to cede the authority to add criminal sections to their own regulatory bills. Having that ability gives every legislator skin in the game and an opportunity to entreat the Director of the FBI to allocate additional resources to fight bank fraud, home-loan fraud, securities fraud, or any other kind of fraud. (180) Policy-based appeals to members also likely would be futile. Too many members want to drop new crime bills into the hopper to appeal to constituencies interested in crime or to fend off conservative challenge on that issue, and self-interest generally trumps the public interest.

Nor can we expect that the cost of overcriminalization will exert discipline on Congress. The cost of law enforcement, particularly corrections, constrains the states more than the federal government. (181) State penal codes address a broader range of conduct than federal law because states must address the average, everyday "street crimes" that the federal government lacks jurisdiction to prosecute. (182) The cost of law enforcement, particularly operating a correctional system, (183) is a considerable part of a state's budget. State legislators also must decide how much law enforcement taxpayers can afford, because states must balance their budgets annually. (184) By contrast, the cost of operating the federal prison system is a miniscule component of the federal budget, (185) and the federal government is under no requirement to balance its budget--the government can borrow to make up for a deficit. (186) Finally, both parties are responsible for overcriminalization, which means that there is no political check on increased spending for politically favored programs. (187) The upshot is that in this very-less-than ideal world, there may be little that can be done to resolve this problem on Capitol Hill.

But there is hope. Legislators in both chambers have introduced bills that would cut back on some of the overreach found in present-day law. Senator Rand Paul and Representative Paul Broun each introduced a bill entitled the Freedom from Over-Criminalization and Unjust Seizures Act of 2012 (FOCUS Act) that would repeal the criminal penalties from the Lacey Act, (188) a statute that makes it a crime to import flora or fauna in violation of a foreign nation's law. (189) Those bills reveal that at least some members of Congress are concerned about the overuse and misuse of the criminal law, and are willing to do something about it. (190) The introduction of those bills is a small step, but it is a step in the right direction. As a result, although persuading Congress to halt further overcriminalization (to say nothing of rolling back existing criminal laws) would be quite an uphill battle, the task may not be Sisyphean.

One scholar has offered a procedural route to criminal justice reform. Professor William Stuntz recommended, among other things, that we should take some of the starch out of our sentencing laws, that we should restrain prosecutorial charging discretion, and that the criminal justice system should become more decentralized. (191) The first two recommendations, however, ask legislators and prosecutors to agree to an amicable divorce, which is unlikely to happen any time soon. The third recommendation would enable community members sitting on juries to become more directly involved in the criminal justice system. …