What Is and Is Not Pathological in Criminal Law

In a recent article in this law review, William J. Stuntz argues that criminal law in the United States suffers from a political pathology. The incentives of legislators are such that the notorious overcriminalization of American society is deep as well as broad. That is, not only are remote corners of life subject to criminal penalties – such things as tearing tags off mattresses and overworking animals – but now crimes are defined with the express design of easing the way to conviction. Is proof of a tangible harm an obstacle to using wire and mail fraud statutes to prosecute political misconduct? Well, then, eliminate tangible harm as an element of proof! The cumulative effect of this multi-dimensional overcriminalization is not just the enhancement of prosecutorial power, but its expansion at the expense of the judiciary. With a broad palette of highly specific offenses to work with, the prosecutor effectively adjudicates. If proof of a serious offense is unavailable, the prosecutor can convict nevertheless through proof of several less serious but more conveniently tailored offenses – usually by means of. a plea agreement bargained for in the shadow of nearcertain conviction at trial. And this rich palette of offenses also enables the prosecutor to exercise legislative power – with the blessings of legislators – as he mixes and matches narrowly drawn offenses into a variegated basis of liability. The upshot is a huge concentration of power and a serious erosion of the rule of law. I think Stuntz has misdiagnosed the problem. My argument is not that the trend Stuntz describes is a good one, but that it is either not pathological, or pathological for a reason Stuntz ignores.