Overcriminalization arose during the early feudal times when the criminal law was applied in judgement of moral and practical deeds pertaining to a society’s outcome on a certain activity. For an individual to be termed a criminal, the subject must have caused or attempted to cause harm, and doing all this with a bad hidden motive. Presently, the lawyers rule out a crime in two ways. First, a crime qualifies to be one when there is an ‘actus reus’ (a bad act) and secondly a ‘men reas’ which means a guilty mind (Rosenzweig, 2003).
This implies that, the criminal law did not pass judgement on a subject with bad thoughts that resulted into an unjust ending provided there was no intention of doing the action in question. Therefore, a car accident or fire outbreak is not justified to be a crime. The first instance of judgement was exercised in church leadership whereas the second case was an improvement towards the former. This understanding of crime however is not valued in America anymore.
Many forms of criminalization exist amongst them being: retention of sentenced individuals beyond the time they are supposed to serve in prison, laws that restrict behavior, sexual affairs and swearing (Whitman, 2005). Definition of Overcriminalization Overcriminalization is a tendency in the United States of America, especially in the congress to apply criminal law in giving a solution to a problem, punishing every mistake, and failing to use the required penalties.
As a result, Americans have been turned into ‘social engineering objectives’. This is contrary to the criminal law which highlights that a behavior is of penalty if the society deems it so. It encompasses a wide category of aspects amongst which is what exactly constitutes a crime and when should it be applied, who it applies to, and the specific boundaries of penalties ( Luna, 2005). The summation of all the above mentioned aspects as single term ‘crime’ is the problem under statement.
Normally, when a society passes judgement on a subject who has committed a crime, the weight of the punishment given goes hand in hand with the extent of destruction done either to human or property, all with an aim of preventing similar behaviors arising in future or just penalizing the individual since it is a wrong behavior. Overcriminalization therefore is passing of judgement without a reason or a fact over a crime (Rosenzweig, 2003). Causes Politicians overcriminalize to create a good name in the nationals; as conventional wisdom suggests, ‘appearing tough on crime wins election regardless of underlying justification.
This is contrary, for if one was to trace back the politicians’ records, there is no single politician who gained power on the basis of decriminalization or reduction of penalties imposed on crime. However, any experienced politician knows that just the mentality ‘fear of crime’ drives people to the ballot box. In contrast individuals, groups, and organizations that drive towards amending of such laws and bills are rejected by the so-called government elects (Luna, 2005).
Politicians have become reluctant in changing their stand so that they become just to the state, instead, even those who are responsible for making the law making reason vaguely; According to them, enactment of certain offences and increase of penalties will reduce crime without consulting or engaging in any form of dialogue because after all the criminals deserve whatever judgement is passed upon them. Politicians go ahead and disregard views of their opponents by putting into law sections that prompt for alternative lifestyles, disregarding the effect of such laws to people (Beale, 2007). Effects/Consequences
Criminalization of homeless people leads to death; hate speech over the media legalizes molesting of such individuals (Weisberg, 2005; Whitehead, 2004). Overcriminalization leads to ‘dangerous disparity of power’, for in stance severe sentences imposed upon individuals so that they give out information or plead that they are guilty. This denies individuals to give their say, instead they just plead guilty because of threats or torture that they go through (Luna, 2005). Among the police, overcriminalization leads to unnecessary monitoring of individuals, racism, discrimination based upon class and ethnicity.
More so the traffic police make it uncomfortable for motorists who end up driving within short distances after which there is a police check-up. As a result some people opt not drive (Beale, 2007). It encourages improper use of resources: either there is poor distribution or inappropriate allocation. Money is diverted into enforcement instead of tackling the social problems present. For instance funds put forth to track down sexual affairs in members of state should be channeled towards fighting rape and child abuse. It changes the work of the criminal justice system to administrative dictators.
A single policy is used to treat crimes of different kinds and there is no dialogue for that for a crime is just a crime (Luna, 2005). Due to frequent amendment and adding of new laws, the criminal law has to borrow from areas of law which are more complex and hard for the local people to understand, for instance the property law. Charges imposed on criminals are not genuine and they lead to prosecutors taking advantage over the accused into convincing them into full trial so as to avoid public presentation and scrutiny of both the case and the law; As a result of rampant overcriminalization, trivial conduct is now often punished as a crime.
Many criminal laws make it possible for the government to convict a person even if he acted without criminal intent -mens rea. Sentences have skyrocketed, particularly at the federal level, and are often disproportionate to the wrongfulness and severity of the conduct (Husak, 2008). Solution The government should issue a notice when in need of punishing minor offences, “a culpability intent that contains minimum ‘mens rea’ (guilty mind) should not be wrongful”, and review of the charging and sentencing decisions of political actors by the judiciary. The criminal law should be free from political interference.
For instance the judicial matters should be dealt with by the lawmakers and should define themselves as so and not non-political experts in criminal justice. The government should have a theoretical justification before sentencing a crime (Simbeye, 2004). Conclusion Dating back to the historical times, a criminal had to do something that is harmful and have an intention of doing it. Presently, it is possible for a person to be convicted guilty and be sentenced for a good number of years for not doing an act required by law, without knowing what the law requires and with no intention of doing the wrong.
Nether is one given a chance to question the law: besides the basic assumption that the law is meant for the wellbeing of the public (Weisberg, 2005). Criminal law is a challenge to the governors of America because it has resulted from structural failures in political processes. Only a small number of individuals are wrestling against crime. Office elects only use crime as gateway into parliamentary offices, where instead of fighting crime, they make the criminal law complicated . They include clauses that are outdated and they are endless on the books; moreover, they add new crimes and harsher punishments.
Contrary, criminal law is meant for legislative debate and for democratic politics as a whole. Therefore the American justice system still suffers from overcriminalization (Husak, 2008). References: Beale, S. S. , (2007); Is Corporate Criminal Liability Unique? American Criminal Law Review, Vol. 44. Husak, D. , (2008); Overcriminalization: The Limits of the Criminal Law. ISBN 019532871X, 9780195328714, Oxford University Press US. Luna, E. , (March, 2005); The overcriminalization. Retrieved on 28th January 2009 from: http://www. wcl. american. edu/journal/lawrev/54/luna. pdf?
rd=1 Rosenzweig, P. , (April, 2003); The heritage foundation legal memorandum executive summary No. 7. The over-criminalization of social and economic conduct. Published by the heritage foundation, Washington DC. Retrieved on 28th January 2009 from: http://www. overcriminalized. com/pdfs/lm_07. pdf Simbeye, Y. , (2004); Immunity and International Criminal Law. Ashgate Publishing, Ltd. , ISBN 0754624331, 9780754624332 Weisberg, B. , (2005); When Punishing Innocent Conduct Violates the Eighth Amendment: Applying the Robinson Doctrine to Homelessness and Other Contextual “Crimes” .
Journal of Criminal Law and Criminology, Vol. 96. Whitehead, D. , (June, 2004). The deadly consequences of criminalization. A nationwide epidemic of hate crimes and murders of homeless people. American friends’ service committee. Retrieved on 28th January 2009 from: http://www. createpeaceathome. org/streetspirit/2004/june2004/criminalization. htm Whitman, J. Q. , (2005); Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe. ISBN 019518260X, 9780195182606, Oxford University Press