In this article, Erik Luna examines the expansion of criminal law in the United States and the increasing use of criminal sanctions to regulate conduct traditionally addressed through civil, administrative, or social mechanisms. Luna defines “overcriminalization” as the proliferation of criminal offenses, overlapping statutes, and regulatory crimes that lack clear moral culpability or proportional punishment.
The article traces how legislative incentives, political signaling, and regulatory delegation have contributed to the growth of criminal liability, often without corresponding safeguards or clarity regarding intent and enforcement. Luna emphasizes that overcriminalization is a structural phenomenon rooted in institutional behavior rather than individual misconduct.
By analyzing statutory breadth, prosecutorial discretion, and the erosion of mens rea requirements, the article explains how criminal law has become a tool of governance rather than a narrow response to inherently wrongful conduct. This work is frequently cited in scholarship addressing criminal justice reform, regulatory offenses, and the constitutional implications of expansive criminal codes.
Citation
Luna, E. (2004). The overcriminalization phenomenon. American University Law Review, 54(3), 703–746.
American University Law Review (PDF)