Bill Stuntz has brilliantly highlighted the supply side of overcriminalization – how the institutional purposes of criminal justice actors will often be served by more criminal law (and perhaps more criminal enforcement) than is appropriate for a well-functioning society. One might profitably supplement his insights by exploring the demand side, and in particular how criminal law offers a unique and unnecessarily bundled set of institutional and procedural characteristics for which there are no non-criminal substitutes. While for actors within the system, the opacity of criminal law cloaks the self-dealing of agencies and agencies (that's the supply side problem), so for outsiders, the shadow of criminal law offers some alluring shade. Efforts to fill in the gaps between prosecutorial and non-criminal options would alleviate the pressure on criminal enforcement.
Daniel C. Richman,
Overcriminalization for Lack of Better Options: A Celebration of Bill Stuntz,
The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz, Michael J. Klarman, David A. Skeel, Jr. & Carol Steiker, Eds., Cambridge University Press, 2012; Columbia Public Law Research Paper No. 10-234
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