Volume6, July 2019 ISSN 2581-5504

“Over Criminalization and its Effects on the Criminal Justice System”

Miss. Ritu Panta
PhD Scholar,
National Law University,
Shimla (H.P)

Abstract

There is hardly any society which is not beset with the problem of crime. Crime has been
regarded as a normal phenomenon. Even a society composed of persons with angelic qualities
would not be free from violations of the norms of that society. In fact crime is a constant
phenomenon changing with the social transformation. Different groups have different and often
incompatible interests in the society which give rise to conflicts which eventually result in the
incidence of crime. The object of criminal justice is to protect the society against criminals by
punishing them under the existing Penal Law. Thus punishment has been regarded as a method
of reducing the incidence of criminal behavior either by deterring the potential offenders or by
incapacitating and preventing them from repeating the offence or by reforming them into law-
abiding citizens. Punishment approaches, towards anti-social behaviors have been referred to as
criminalization. Today one of the biggest challenges before the criminal justice systems of the
world is the issue of over criminalization. Over criminalization is not a problem of numerous
crimes, rather it is a phenomenon which encompasses a broad array of issues. It has been referred
to as the abuse of the supreme force within a particular criminal justice system. It is reflected as
the implementation of impositions or crimes of sentences without any unjustified reasons. Over
criminalization has been viewed as a phenomenon as grossly allowing disproportionate penalties.

The paper discusses the concept of over criminalization in the light of Indian context, its effects
on the criminal justice delivery system and on the fundamental rights of the persons who are
subject to disproportionate punishment. Overcrowding in prisons is one of the immediate
aftermaths of over criminalization. Imprisonment is an expensive and largely ineffective way of
reducing crime. To do way with the problem of over criminalization, it is being proposed that a
new concept of Justice reinvestment be incorporated in the criminal justice system of India.
Justice reinvestment advocates that, funding for prisons should be reduced and redirected
towards addressing the underlying causes of crime in communities with high levels of
incarceration. Incarcerated individuals overwhelmingly come from the poorest and marginalized
sectors of society. Justice reinvestment therefore proposes shifting resources away from
incarceration towards prevention, early intervention and rehabilitation of the disadvantaged
communities who are in need of care and concern. Another effective way of dealing with the
issue of over criminalization is decriminalization of wrongs which are harmless in nature and are
against private morality. Such wrongs should be kept out of the purview of the definition of

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crime. Also, the paper stresses upon the need of decriminalizing victimless crimes. Victimless
crimes refer to such illegal behaviours which do not violate or threaten anyone’s rights. Purpose
of criminal justice system is to do justice by punishing the offender. Decriminalization of petty
wrongs, wrongs against private morality will enable the criminal Justice system in India to
perform its essential task of protecting persons and property against serious offences.

Key words: Over criminalization, Justice reinvestment, Victimless Crimes.

Introduction
There is hardly any society which is not beset with the problem of crime. Crime has been
regarded as a normal phenomenon.1 Even a society composed of persons with angelic qualities
would not be free from violations of the norms of that society. In fact crime is a constant
phenomenon changing with the social transformation. Different groups have different and often
incompatible interests in the society which give rise to conflicts which eventually result in the
incidence of crime. The object of criminal justice is to protect the society against criminals by
punishing them under the existing Penal Law. Thus punishment has been regarded as a method
of reducing the incidence of criminal behavior either by deterring the potential offenders or by
incapacitating and preventing them from repeating the offence or by reforming them into law-
abiding citizens. Punishment approaches, towards anti-social behaviors have been referred to as
criminalization. Criminal law being a core institution of the liberal state and of the free society
provides us with a sense of security and purposefulness .Coercion and condemnation are the two
core elements on the basis of which criminal law functions in society as a means of social
control. Through the medium of punishment, it not only condemns the wrongful act but also
coerces an individual to abide by the law. Of late, criminal justice system has been accused of
being unprincipled and chaotic owing to the principle of over criminalisation and subject to the
unreflective and populist practices of politicians, practitioners and other social actors. Thus, not
only are we experiencing an unprincipled, chaotic and populist criminal law, we are also using it
as if it were the main way or perhaps the only way by which the state can put its policies into
practice. As a foreseeable consequence, many prisons have become overpopulated and ended
fulfilling a role not very different from dumps of human. It has become a matter of concern for
many criminologists, that why a welfare institution has gone so wrong as to be deemed a ‘‘lost
cause’’2used for perverse and immoral ends”3

1
Emile Durkheim, On Crime and Punishment, (Dissertation.Com,2002)
2
Andrew Ashworth, “Is Criminal Law a Lost Cause”, 116 Law quarterly Review 225 (2000)
3
Douglas Husak, Over criminalisation,The Limits of the Criminal Law (Oxford University Press,2009)

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1. What is over criminalization?

Over criminalisation indicates the unprincipled extension of the practice of criminalizing
conduct. It refers to the abuse of coercive power by the state through the enactment of criminal
statutes. In other words it is a phenomenon primarily and mainly related to the enacting of
criminal laws. Over criminalisation is a complex multifaceted concept that involves different
emphasis and considerations. In order to determine whether or not we are facing over
criminalization, we do not need to look anywhere else but to penal statutes themselves. Over
criminalisation includes (1) untenable offences, (2) Superfluous statutes, (3) doctrines that
overextend culpability, (4) crimes without Jurisdictional authority, (5) grossly disproportionate
punishments, (6) excessive or pre-textual enforcement of petty violations.The phenomenon of
over criminalization covers most of the different stages of the criminal justice system, including
jurisdictional and legislative matters, use of power by the police, proportionality of sentencing
and punishment. Over criminalisation is regarded pernicious mainly because it produces unjust
punishments which are excessive or are inflicted for conduct that should not be criminalized at
all. There is a complex relationship between criminal law and the punishments. Expansion in the
criminal law increases levels of punishment in obvious ways. Punishments have been regarded as
the most coercive practice of social control in the modern state because these restrict freedom of
movement ,take away civil and political rights, terminate the life of an individual .If the practice
of punishment is unjust beyond the base line ,the practice itself becomes deeply objectionable .

2. Most salient and Pervasive forms of over criminalisation.

i) Overlapping Offences.
There are a number of statutes that criminalize conduct that has already been criminalized by a
different statute within the same jurisdiction. Since duplicating statutes generally render
sentences harsher which are a violation of basic human rights of the individuals. On many
occasions, overlapping offences relate to penal populism. Governments use criminalization in
order to satisfy the demands of the public, particularly after some criminal conduct has received
great public attention .Overlapping offences make the state more popular with those voters who
desire tough-on-crime type of policies. Unjustified expansion of substantive criminal law by
enacting duplicate statutes is seen as a violation of the principle of rule of Law.

ii) Ancillary Offences.

Ancillary offences represent a second instance of over criminalisation. These offences typically
bear some kind of direct or indirect auxiliary relationship to the primary harm. They are
described here as ancillary crimes .The main function of ancillary offences is to facilitate the role
of the prosecutorial part, especially when the offence of which these offences are ancillary is for
some reason difficult to prosecute. The existence of these ancilliary offences in the act

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criminalizing conduct that would otherwise be innocent, allows the prosecution to allege some
success in tackling the core offence. Ancillary offences help to increase sentences, since
defendants can be charged, prosecuted and sentenced for more types of offences. As a
consequence, ancillary offences have become a well-cemented instance of over criminalization
in current penal legislation.

iii) Jurisdictionally Mistaken Offences.

This type treats as a criminal offence what should either be a civil offence or no offence at all.
Such an approach supports the expansion of the criminal law into areas that should be beyond its
jurisdiction. Examples of this type of offences are statutes that criminalize acts which are of a
very trivial nature, criminalization of same-sex sexual intercourse, or the criminalization of
beliefs, immoral acts such as prostitution, gambling, drug abuse etc.These cases are
jurisdictionally mistaken offences because they criminalize conduct that is not part of what the
criminal law should criminalize or of what the law should regulate at all. Personal morality, and
individual conscience, is prima facie beyond the proper jurisdiction of the criminal law.

3. Causes of over criminalization.

Various factors have been attributed as some of the most distinct causes of over criminalisation.

i) Vested interest of the state.

The politics of law and order which the political parties play in order to gain maximum vote
banks has been attributed as one of the prime causes of over criminalisation.The ruling party in
order to avert any opposition and to seek the effective implementation of its policies resort to
over criminalisation. This attitude of the ruling parties has resulted in an ever-increasing crime
rate within the country and has exacerbated severity of punishments. The severity of
punishments has been noticed to be leading to massive injustices on the offenders, and in turn,
cases of over criminalization have been eminent.It is noted that the severity of the punishments
to some levels are not justified because they are executed without any justifications or
arguments.

ii) Deterrent and Retributive approaches towards crime and criminal behavior. Criminal
justice systems of many countries aim to control crime through deterrent and retributive means.
Retributive concept of punishment does not treat punishment as an instrument for securing
public welfare. Retributive justice suggests that evil should be returned for evil without any
regard to consequences. It suggests that punishment is an expression of society’s disapprobation
for offender’s criminal act. The principle of deterrence presupposes infliction of severe penalties
on the offenders with a view to deterring the offenders from committing crime. Therefore

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following the principle of retribution and deterrence as an effective way to control crime, many
criminal systems have adopted and incorporated it in the substantive and procedural laws. In this
context, punishment has been viewed as an effective means of reducing crime through
incapacitation. This has resulted in unduly harsh punishment which are disproportionate to the
wrong committed. This attitude of the lawmakers has exacerbated the problem of over
criminalization.

iii) The irrelevance of the harm principle.

The problem of over criminalization is viewed with respect to the wrongs which go beyond the
traditional and most fundamental principles of criminal law i.e. mens rea.Also the problem of
over criminalisation is viewed in relation to offences which are immoral, less harmful and of a
very trivial nature. In dealing with wrongs more of a civil and regulatory nature, the principle of
criminalization which is based on the harm principle has been rendered irrelevant and redundant
due to the unlimited and unbridled application of substantive criminal law, to bring within its
ambit immoral, trivial and victimless offences.

iv) Over criminalisation as being caused by professional and structural factors.

Professional advancement and growth within a career in the justice system has contributed to
over criminalisation. Like other professionals within their field of expertise, police and
prosecutors also seek the promotions within their jobs. With the system evaluating who to
promote through looking into the number of arrests and convictions a police makes, this is a
loophole that leads to over criminalisation practices. Thus, the more crimes a police has on the
books, higher the probability of their promotions. On the same note, it is paramount that with
numerous crimes in the books, attorneys and judges would want to be recognized as productive
by resolving the cases the fastest possible.

4. Consequences of over criminalization. Having understood the causes of over

criminalisation, it is ideal to look into the consequences of the same. In this case, looking into the
consequences brings out the big picture of what underlies the phenomenon and would later help
in establishing some solutions.

i) Infringement of constitutional and human rights.

Over criminalization is a phenomenon which has numerous consequences. It affects varying

subjects in different ways. The distended application of substantive criminal law has adverse
effect on the freedom and liberty of the people. The unprincipled application of the principle of
over criminalisation has made the enforcers of law omnipotent and all powerful. They have
assumed the place of parties seeking arrests and convictions. The police and law enforcement

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agencies exercise unbridled power to squeeze out information from the offenders. Custodial
violence and torture are some of the examples of abuse of power by the investigating agencies.
This practice greatly violates the constitutional rights of the prisoners such as right against self-
incrimination. In fact over criminalisation leads to guilty pleas that are unjustified and severely
unfair. Finally it results in unfair judgments leading to unfair sentences. Across the globe few
drivers travel without breaking traffic rules, but this does not justify the punishments infringed
on them. It is from this assumption that the police tend to criminalize every driver on the road
and charging them heftily even for crimes not committed. Police have developed behaviour of
stopping any driver even without a justified reason because they have been influenced by over
criminalization behaviors being practiced within their profession.

ii) Overcrowding in prisons.

The concept of over criminalisation has direct relation to the overcrowding in prisons.
Disproportionate expansion of criminal law means more punishments. More punishments mean
more imprisonisation.The net result is overcrowding in prisons.

iii) Extra burden on the state finances. Over criminalization encourages poor management
and misallocation of limited resources within a country. In an effort to prove a point and
criminalize an act, the government uses a lot of resources which could be channeled to other
fruitful activities about development. To the extremes, over criminalization encourages poor
management and misallocation of limited resources within a country. Many governments
squander funds on criminalizing prostitution, gambling, drug abuse and on futile policing.
Instead, it would be better if law enforcers utilize the resources to track down other dangerous
criminals such as child molesters and rapists.

iv) Biased/prejudicial decisions and unjust Punishments.

Law enforcement agencies in order to implicate the offenders use corrupt and immoral practices
to collect false evidence. Threatening of the witnesses and the suspect is a normal tactic which is
generally adopted by the investigating agencies. Sentence pronounced on the basis of fabricated
evidences results in biased prejudicial decisions which pave way for unjust /harsh and excessive
punishments.

v) Over criminalisation breeds corrupt practices and lowers down the moral force of law.

The enactment and deployment of the criminal sanction targeting behavior that is harmless
weakens the moral force of law within a country, because the law enforcement agencies dwell in
biases, prejudice discrimination and various unlawful and dilatory practices to justify and
substantiate their allegations and accusations.

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5. Solutions to check Over criminalisation.

i) Adoption of reformative principles in checking certain wrongful behavior.

Most part of the criminal justice systems is dominated by the retributive approaches towards the
control of crime causation. Strict application of retributive principle in handling the commission
of crime has resulted in disproportionate punishment which is unjust and excessively severe.
Therefore it is pertinent to consider the reformative approaches which aim at changing the
attitude of offender so as to rehabilitate him as a law abiding member of society. Reformative
theory condemns all kinds of corporeal punishments. The major emphasis of the reformist
movement is rehabilitation of the deviants in peno-correctional institutions so that they are
transformed into good citizens. This approach advocates humane treatment of inmates inside the
prison institutions. Parole, Probation, Open prisons are an extension of reformative
principle.Less harmful wrongs, victimless crimes such as drug abuse, immoral acts like
prostitution, gambling should be dealt with reformative approach.

ii) Review the Criminal Justice System.

To counter the problem of over criminalization, it is necessary to review the entire criminal
justice system. Certain constitutional principles which adhere to basic human rights principles
must be practically incorporated in the procedural criminal law. It too calls for a review of the
constitutional provisions, so that unprincipled and chaotic expansion of substantive law could be
checked and controlled. With appropriate checks, harsher punishments and unjustified laws and
policies can be controlled as well as reviewed to prevent discrimination in the system practice.

iii) Decriminalization of certain category of offences.

To check the unprincipled growth of overcriminalizaton, which has increased the percentage of
criminal activities in many countries, decriminalization in the field of private morality has been
suggested. Cases involving public morality are generally victimless crimes which do not directly
harm the other party. Prostitution; prohibited sexual behavior, gambling, and drug abuse have
been identified as the crimes which do not involve the second party as a victim. It is sincerely
proposed that such wrongful acts must be decriminalized .Rather a reformative approach towards
the wrong doers must be adopted so that they could be rehabilitated and assimilated in the
society as normal human beings.

iv) Justice Reinvestment.

There is a plethora of evidence-based data which go on to suggest that, despite effective punitive
measures in the form of punishment (imprisonment) the problem of crime and criminal behavior

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still persists. The moot question to be contemplated upon is, whether imprisonization of people
guilty of deviant behavior is a fool proof solution to the growing menace of crime in the world
societies? Can, societies of the world guarantee to rehabilitate the criminal through
imprisonisation?.A new approach, in the form of Justice reinvestment as a means to effectively
solve the problem of criminality and over criminalisation is being approached.The concept of
Justice reinvestment is based on the premise that imprisonment is an expensive and largely
ineffective way of reducing crime4.It advocates that, funding for prisons should be reduced and
redirected towards addressing the underlying causes of crime in communities with high levels of
incarceration. Incarcerated individuals overwhelmingly come from the poorest and marginalized
sections of society. Justice reinvestment therefore proposes shifting resources away from
incarceration towards prevention, early intervention and rehabilitation of the disadvantaged
communities who are in need of care and concern.

v) Strict adherence to the constitutional law.

To check the growing scourge of over criminalisation, strict adherenceto the constitutional
provision of right to life and liberty must be observed while implementing and expanding the
substantive criminal law. Fundamental principle of Article 21 which states that no one shall be
deprived of his life except according to the procedure established by law must be strictly adhered
to.

vi) Accountability of the Government.

Investing in government accountability is also a strong solution that could be of high value in
establishing appropriate solutions for over criminalisation. For impunity and corruption to end
and for a country to end over criminalisation, it is crucial for the system to develop theoretical
justification in using criminal sanctions. Such a strategy is crucial as it helps to resolve the
enormous problem of overuse of power to discriminate against others and the revival of the harm
principle.

Conclusion

Over criminalization is not a problem of numerous crimes within the justice sector, rather it is a
phenomena, which encompasses a broad array of issues. Through this paper it is attempted to
highlight some causes of over criminalization including political influences on the established
systems, impunity among the lawmakers, irrelevance of the harm principle, corruption within the
system and other professional and structural factors. Thus there are identified consequences of

4
Australian National University, National Centre for Indigenous Studies, Reducing incarceration using Justice
Reinvestment: an exploratory case study.

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over criminalisation including loss of the moral force of a country's justice system, harmful
social costs across the society increased corruption within the system, misallocation of limited
resources, disparity of power and an inefficient justice system within the country. Some possible
solutions of over criminalization have also been identified in this discussion. They include
review of the constitution and the existent laws, investing in government accountability and an
overhaul of the entire system to revive the strong mission of fighting against over
criminalisation.

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