According to Kadish (1967), the concept of over-criminalization suggests that laws governing public morality and decency can divert law enforcement officials’ attention from more significant crimes. This excessive reliance on law enforcement for personal matters has caused serious issues within the criminal justice system. The use of criminal law to enforce moral standards has proven ineffective and hinders efforts to address more severe offenses. As a result, America’s true crimes are being overshadowed as focus is shifted towards actions deemed indecent. The term “over-criminalization” does not fully capture the extent of this problem in relation to criminal law. While certain crimes, such as rape and murder, already take moral considerations into account, applying these perspectives to other aspects of life may not be appropriate.
There is a valid concern about how much government-approved moral beliefs can infringe on citizens’ private lives. This is mainly because law enforcement continually interferes with personal choices in lifestyle. For example, many Americans live a risky lifestyle by excessively drinking, partying, and pursuing sexual relationships with whomever they choose, including same-sex partners. Nevertheless, these laws that impose moral restrictions prohibit such behaviors in specific areas of the country.
The Defense of Marriage Act (DOMA) in Texas and other States prohibits same-sex marriages, demonstrating an excessive imposition of moral standards. The law restricts individuals’ freedom to determine the morality of engaging in consensual sodomy. Additionally, Americans who consume certain drugs or alcohol face dissatisfaction with strict bar regulations, as some are compelled to stay within the bar while drinking.
Although alcohol is legal, there are limitations on its consumption such as the prohibition of public alcohol consumption and becoming intoxicated in public places. Similarly, tobacco products are subject to stringent regulations that prohibit individuals from smoking in their preferred bars or restaurants. This raises the question of why people cannot freely smoke or drink without legal intervention. The straightforward answer for both scenarios is excessive criminalization.
The main aim of over-criminalization is to exercise complete authority over our actions, both at an individual and national level. This intrusion is fundamentally not acceptable, and the determination of personal objectives for American citizens should not solely rely on the law. Presently, there is a widespread perception of over-criminalization in the United States, with numerous Americans feeling that their lives are dictated by criminal law. Many individuals express discontentment with the criminal justice system because they believe that the multitude of limitations and regulations on their personal activities violate their constitutional rights.
The American people have the right to be dissatisfied with the strict regulation of their personal and consensual activities, especially regarding the scrutiny of pornography in the United States. According to Schmallger (2003), all jurisdictions have laws against selling, possessing, or distributing obscene material. Additionally, many jurisdictions also define lewdness or public indecency. Americans want unrestricted access to specific adult content within their own homes.
The government should not interfere with individuals’ right to choose and participate in any form of entertainment they wish. Personal freedom is crucial, as long as all parties involved consent. Legislation should not control Americans’ individual rights or personal lifestyles. Justice Thurgood Marshall has expressed that the First Amendment protects an individual’s choice of books or films from state regulation. It is puzzling why there are so many concerns about personal matters among the American people, often revolving around indecency, obscenity, or immorality. While criminal acts should be subject to laws in the United States, regulating morals seems excessively intrusive. Each person’s principles should be judged according to their own standards rather than being dictated by legal regulations.
America is dealing with the issue of over-criminalization, which requires action from the citizens. This problem is acknowledged in both Criminal Law Today: An Introduction with Capstone Cases by Schmallger and the article Same Sex Marriage License Laws from About.com: Marriage.
