Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses
Year: 1997
Type: preprint
Abstract: This article offers an analytical framework for evaluating the claim, made by numerous overcriminalization critics over the years, that regulatory offenses such as selling liquor without a license, taking sleeping pills without a prescription, and carrying a gun without a permit, involve what they call neutral acts, and that the value of the criminal sanction, when applied to such acts, has become diluted. Contrary to many scholars' assumptions, I argue, regulatory violations of this sort do, in certain circumstances, contain significant moral content. In the kinds of cases I describe, the source of moral content is not the underlying act that is prohibited (the liquor selling, sleeping pill taking, or gun carrying). Rather, it is the knowing or intentional violation of the law itself, and the cheating or promise breaking or defiance that is often involved in such lawbreaking. (For example, a business entity that seeks to gain a competitive advantage by failing to comply with a trivial administrative regulation that it knows its competitors will honor has, in a sense, cheated and thereby done a morally wrongful act.) Criminal sanctions, moreover, can provide an appropriate response to such malum prohibitum conduct. This is best illustrated by an analogy to offenses such as criminal contempt, perjury, and obstruction of justice, where criminal sanctions have traditionally been used against acts that are viewed as morally wrongful in large part because they are performed in violation of the law.
Source: SSRN Electronic Journal
Author: Stuart P. Green
Institution: Rutgers, The State University of New Jersey
Language: English
Topic: Criminal Law and Policy
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2220769558