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Overcriminalization In An Adversarial Criminal Justice System

Updated on October 29, 2014

It is a sad reality of the American criminal justice system that "justice" is not necessarily the ultimate aim of criminal prosecutors. It is clear that there has been a major shift in policy concerning which cases are filed and how aggressively those cases are pursued by prosecutors. Perhaps this shift in policy is the result of elected district/County attorneys who, wanting to bolster their "law and order" credentials, seemingly direct rank and file prosecutors to file criminal charges even where there is little or no evidence against a given defendant. Moreover, It has become common practice in many areas for prosecutors to charge defendants with the most serious conceivable offense, even where relatively benign allegations do not realistically support the charges.

The Problem of Overcriminalization


Examples of Overcriminalization

The overcriminalization phenomenon is most readily apparent in the area of domestic violence. Consider the example of a mother charged and convicted of child abuse for spanking her child. Prosecutors brazenly described the situation as a "pretty simple, straight forward spanking case," even noting that the mother (read as "criminal") did not use a belt or leave any bruises on the child. Yet, prosecutors forged ahead with child abuse charges, eager to have the mother labeled as a felon for having engaged in conduct that is widely accepted and widely practiced by other similarly situated parents. In the area of domestic violence, prosecutors have elevated common conduct to the level of a criminal offense

Prosecutors are also influenced by overcriminalization in cases where a defendant has clearly crossed the line of acceptable behavior. Consider a domestic violence case in which an alleged victim does not wish to press charges. Although a prosecutor may be obligated by law to consult with an alleged crime victim, a prosecutor is not obligated to follow the wishes of the alleged victim. A prosecutor, therefore, is free to proceed with a criminal case over the objection of the witness. If an alleged victim fails to appear in court to testify, he or she can be held in jail as a material witness until a new trial date is scheduled. If at trial an alleged victim recants the version of events initially given to the law enforcement, he or she can then be charged with making a false statement to police officers.

Overcriminalization of America


The Proper Role of Prosecutors

Perhaps the epidemic of overzealous criminal prosecution is the result of the modern prosecutor's misguided definition of justice. The explanation, however, may be just this simple: "it's the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor's job is simply to win." Irrespective of the causes of the overcriminalization phenomenon, the Court has been consistently clear about the duties of a prosecutor, determining that "the prosecutor's role transcends that of an adversary: he is the representative not of an ordinary party to a controversy, but of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done." U.S. v. Bagley, 473 U.S. 667, 675 n. 6 (1985). Justice must be the primary concern of prosecutors. The guiding principle of justice is fairness, for both the victim and the accused. Prosecutors, therefore, should always seek to do that which is fair in any given case.


When Prosecutors Fall Short of Expectations

Not withstanding the numerous and varied admonitions of courts reminding prosecutors of these lofty ethics, prosecutors still manage to lose sight of their role as a defender of justice. Some prosecutors still consider that their role in the criminal justice system is to bring as many cases as they can. In most cases, prosecutors file charges that are too harsh under the circumstances, knowing they will just make a plea offer to a lesser (read fair) charge. Many desperate defendants will not risk a conviction on the overinflated charge, agreeing to compromise on the reduced charge. The adversarial legal system was ingrained in prosecutors throughout their legal education. When a situation creates a difficulty in reconciling the traditional role of an adversary and the elevated expectation of a prosecutor, many prosecutors err on the side of being an adversary. It is unfortunate that some prosecutors believe that they do not have to listen to the court or to victims. Fortunately, there is one group that prosecutors have to hear: registered voters. If the citizenry is uncomfortable with the overcriminalization of America, then the citizenry can vote for public officials, legislatures, and prosecutors who are more committed to justice than to winning.

Overzealous Prosecution?

Do you personally know someone who has been charged with domestic violence, child abuse, or a DUI only to have the case dismissed due to lack of evidence?

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    • Timothy Hampton profile image

      Timothy Hampton 

      3 years ago from Greater Atlanta Area

      This is a frightening reality more and more people are facing. The United Nations has also investigated this phenomenon. It's real. Thanks for writing this!

    • PhoenixV profile image


      4 years ago from USA

      This is a very eye opening and frightening trend in the so called "justice system'. Great article.

    • A Little TRUTH profile image

      A Little TRUTH 

      4 years ago

      Yes, to say that overcriminalization exists is an understatement. According to Harvey Silvergate in "Three Felonies a Day", there are enough laws on the books to make the average American in business guilty of committing three felonies a day.


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