In this article, William J. Stuntz analyzes the structural incentives that drive the expansion of criminal law in the United States. Rather than attributing overcriminalization to abstract moral decline or bureaucratic error, Stuntz locates the problem in the political economy of criminal legislation and enforcement.
The article explains how legislators benefit from enacting broad and symbolic criminal statutes while shifting enforcement discretion to prosecutors, who operate largely outside democratic accountability. This dynamic encourages the proliferation of vague, overlapping, and redundant criminal laws that maximize prosecutorial leverage while minimizing political cost.
Stuntz further argues that constitutional criminal procedure has unintentionally reinforced these incentives by constraining police and courts rather than legislatures. By limiting enforcement practices without restricting statutory scope, judicial doctrine has allowed legislatures to criminalize more conduct while leaving charging decisions to administrative discretion.
This work is a foundational analysis of modern American criminal law, frequently cited in scholarship addressing prosecutorial power, legislative incentives, and the structural causes of overcriminalization.
Citation
Stuntz, W. J. (2001). The pathological politics of criminal law. Michigan Law Review, 100(3), 505–600.
Michigan Law Review (PDF)