[1] Erik Luna credits the coining of the term to Sanford Kadish in his 1962 paper "Legal Norm and Discretion in the Police and Sentencing Process.
"[2] Kadish described “criminal statutes which seem deliberately to overcriminalize, in the sense of encompassing conduct not the target of legislative concern.”[2] Luna provided his own definition of the term in 2005, describing overcriminalization as "the abuse of the supreme force of a criminal justice system—the implementation of crimes or imposition of sentences without justification"[3] His definition of the concept was broader than Kadish's, extending overcriminalization beyond individual laws and describing it as a phenomenon that can manifest in 6 different ways: "(1) untenable offenses; (2) superfluous statutes; (3) doctrines that overextend culpability; (4) crimes without jurisdictional authority; (5) grossly disproportionate punishments; and (6) excessive or pretextual enforcement of petty violations.
Overcriminalization can also exacerbate other existing problems within a penal system, with overcrowding reducing access to already limited prison resources such as education or mental health services.
However, authors such as Ellen Podgor argue that if more focus is put on preventing overcriminalization tactics, such as stacking charges for the same crime (in instances where this is unnecessary), stress on the justice system could be lessened through a reduction in the number of criminal cases.
Contrary to Larkin's argument, overcriminalization could serve to help prevent further crime, or to deter future or prior criminals from offending based on the consequences and punishment that go along with getting convicted, as argued by Dmitriy Kamensky.
[18] In lots of cases, mens rea is incredibly important to prove or find intent to commit a crime, along with its corresponding partner actus reus.
[19] In 2014, the Manhattan Institute for Policy Research began to study the issue of overcriminalization, espousing the idea that state and federal criminal codes are overly expansive and growing too quickly.
[20][21][22][23][24] National Review has described United States Supreme Court Justice Neil Gorsuch as "a sharp critic" of overcriminalization.