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The Price of Overcriminalization

Some vaguely-written laws cast too wide a net, snargin otherwise law-abiding citizens and doing more damage than good

Some vaguely-written laws cast too wide a net, snaring otherwise law-abiding citizens and doing more damage than good

In a recent New York Times piece, Adam Liptak discussed the emerging partnership between the left and the right with regards to criminal justice policies. While civil libertarians and liberals have a long history of opposing measures such as the civil commitment of sex offenders and expansion of civil forfeiture laws, Liptak notes that they have recently been joined by conservatives who criticize the criminal justice system’s current atmosphere of overcriminalization and the federal government’s intrusion into arenas best dealt with by the individual states.

What is Overcriminalization?

Essentially overcriminalization is the use of criminal law as the main tool to solve a myriad of social problems, many of which are neither amenable to nor appropriate for the criminal justice system. Overcriminalization is often the result of vague laws with tough policies, casts a wide net, criminalizes trivial behavior, and ensnares otherwise law abiding citizens in the criminal justice system. One need not look too far to find examples of overcriminalization that aim to “get tough” but instead cause more harm than good. Take the case of “Zero Tolerance” in the school systems.

The Problem with ‘Zero Tolerance’

Zero Tolerance policies—a “tough on crime” approach—are closely linked with the passage of the 1994 Gun Free Schools Act. The Gun Free Schools Act requires public schools to respond to students who bring firearms to campus with a yearlong expulsion from school and referral to the juvenile (or adult) justice system. In their attempt to get tough on crime, many local school districts quickly expanded these policies to include drugs, alcohol, fighting, and carrying other items that could be construed as weapons (for example, this 6-year-old who was expelled for bringing an camping utensil to school so he could eat his pudding). The manifest function of such polices seem reasonable: after all, who would condone the presence of weapons and drugs on school property? Dig a little deeper and it is easy to see how the latent functions of zero tolerance policies widen the net, overcriminalize, and create unintended harm.

The obvious intent of zero tolerance policies is to provide a safe educational environment for school children, clearly a worthy goal in which the government has a compelling state interest. However when exacto knives for art class and plastic knives for lunch become weapons, and Tylenol for headaches and Albuterol Inhalers for asthma become “drugs,”  these inflexible policies, which frequently do not allow for the consideration of extenuating circumstances, quickly move from reasonable to harmful.

How does expelling a child from school for having Tylenol or an Albuterol inhaler in his or her purse accomplish the goal of a safe educational environment? Surely the harm caused from missing class places a student at higher risk for juvenile delinquency than the harm of having the Tylenol or Albuterol inhaler on campus? Surely safer, less criminalizing alternatives can better discourage students from having drugs or weapons on campus without alienating them from their educational environment.

Examples of Net Widening

Unfortunately, school based policies are not the only examples of net widening and overcriminalization. Civil forfeiture laws, originally designed to thwart organized criminal enterprises by recovering not only the proceeds of their crimes but also the means used to facilitate them, have been expanded well beyond their original intent, allowing the seizure of property that lawfully belongs to someone other than the actual criminal. “Smoke a Joint, Lose Your License” laws result in tougher penalties, in some jurisdiction, for smoking marijuana in one’s living room than driving under the influence. Or take, for example, owners of garden supply companies who have been held legally responsible for the marijuana cultivated by their customers.

The concurrent jurisdiction of both federal and state authorities for the same drug crimes have resulted in the prosecution of marijuana offenders for the same offense under both state and federal law while somehow not violating the prohibition against double jeopardy. Provisions of the civil forfeiture laws that allow informants to earn up to 1/4 of the assets seized as a result of their testimony have spawned a black market in which defendants can buy drug leads to trade for a reduced sentence.

What is the Real Effect of ‘Getting Tough’ of Crime?

The real question is, are these policies reducing drug crime, or are they “sound and fury signifying nothing”?  As is the case with most policies that aim to “get tough” on offensive behavior—while they sound appealing—do little to actually address the underlying problems. They make for nice sound bites on the news and in re-election campaigns. In reality though, they create new criminal problems (trading in drug crime leads) and subject law abiding citizens to criminal punishment (as in the case of the garden stores).

Not only has this rigid lack of flexibility and refusal to consider the bigger picture failed to deter both potential and repeat offenders, these policies have thus resulted in net widening, a phenomenon which unintentionally widens the grasp of the criminal justice system to include “violators” not previously considered problematic. So when it comes to criminal justice, it’s refreshing to see the formation of partnerships between the left and the right aimed at what Normal L. Reimer, executive director of the National Association of Criminal Defense Lawyers, calls “less government, less intrusion and less regulation ” (source).  These seemingly counterintuitive partnerships, in a way, make perfect sense; after all, justice should not be a partisan issue.

Meridith Spencer is an adjunct Professor of Criminal Justice and Sociology at Bridgewater State College and Fisher College and an advocate for public policy that is “smart on crime.” She can be reached at

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