Maximizing Charges: Overcriminalization and Prosecutorial Practices During the Crime Decline

Criminal law has dramatically expanded since the 1970s. Despite popular and academic attention to overcriminalization in the United States, empirical research on how court actors and, in particular, prosecutors, use the legal tools associated with overcriminalization is scarce. In this chapter, we describe three forms of overcriminalization that, in theory, have created new tools for prosecutors: the criminalization of new behaviors, mandatory minimum sentencing statutes, and the internal expansion of criminal laws. We then use a unique dataset of felony filings and dispositions in Florida from 1995 to 2015 to test a series of hypotheses examining how overcriminalization influences prosecutorial practices given three changes to the political economy during this time: the decline in violent and property crime, the Great Recession, and a growing call for criminal justice reform. We find that prosecutors have been unconstrained by declining crime rates. Yet, rather than rely on new criminal statutes or mandatory minimum sentence laws, they maintained their caseloads by increasing their filing rates for traditional violent, property and drug offenses. At the same time, the data demonstrate nonviolent other offenses are the top charge in almost 20% of the felony caseload between 2005 and 2015. Our findings also suggest that, despite reform rhetoric, filing and conviction rates decreased due to the Recession, not changes in the law. We discuss the implications of these findings for criminal justice reform.