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Law Faculty Scholarship

Series

2011

Overcriminalization

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New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan Jan 2011

New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan

Law Faculty Scholarship

Over-criminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of the over-criminalization phenomenon by examining two types of over-criminalization prevalent in white collar criminal law. The first type of over-criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly. The second type of over-criminalization addressed in this article is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to …


Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining And Overcriminalization, Lucian E. Dervan Jan 2011

Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining And Overcriminalization, Lucian E. Dervan

Law Faculty Scholarship

In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.” If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice. As such, this piece provides a detailed analysis of modern-day plea bargaining and its role in spurring the rise of …