70 Am. U. L. Rev. 1061 (2021).

* Gary R. Trombley Family White Collar Research Professor and Professor of Law, Stetson University College of Law. The author thanks the participants in the Southeast Association of Law Schools (SEALS) discussion group titled, Three Felonies a Day?: Is There a Problem of White Collar Overcriminalization, and the participants in the faculty speaker series at the American University Washington College of Law. The author also thanks Professors Hilary J. Allen, Jonas Anderson, Susan Franck, Lewis A. Grossman, Cynthia Jones, Eliezer Lederman, Binny Miller, Jeffrey Lubbers, Erin Okuno, Jenny Roberts, and Louis Virelli, as well as Stetson University College of Law and Cheryl L. Segal.

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?

Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations—as well as their enforcement procedures, the prosecution of crimes, or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: (1) those advocating for increased criminalization and regulation or (2) those claiming overcriminalization and overregulation.

This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.