Over Criminalization

Abstract

The Over Criminalization occurs when criminal law goes beyond its legitimate functions, and also when the proper lines between criminal law and regulatory laws are not observed. Excessive reliance upon the criminal law to perform tasks for which it is ill-suited has created acute problems for the administration of criminal justice. It is plain, therefore, that the primary force behind existence of this circumstance is the presumption that criminalizing an activity tends to reduce its incidence, or at least tends to eradicate its worst excesses. Therefore, even those holding this judgment, however, can scarcely ignore the hard fact that the prohibitions have not substantially eliminated the demand. Nor have the laws and enforcement efforts suppressed sources of supply. In other words, even the most severe punishment, the death penalty as currently practiced, cannot deter serious crime as it was theoretically presumed.

Despite the fact that Section 77 of the Constitution of the Kingdom of Thailand B.E. 2560 clearly states that the State should introduce laws only to the extent of necessity, however our criminal law typically has extended the criminal sanction well beyond the fundamental offenses to include minor offenses which threaten far less serious harms into the Petty Offense category under the Penal Code. With respect to the problem of Over Criminalization, the importance of this reform for criminal justice cannot be overstated,
the revisions of the criminal code shall be completed. This study of the Over Criminalization and Structure of Crime offers a means of understanding, and perhaps, to some degree, of controlling, this unfortunate phenomenon. The better approach would be removing all these conducts from the Penal Code and since we have encountered a mass of crimes outside the Penal Code, matching the Penal Code itself in volume, and authorizing criminal convictions for such offenses, the latter shall be removed as well. These conducts shall be treated as an administrative offenses or public order offenses and would be disposed in accordance with administrative procedure, rather than criminal procedure.

The plain sense that the criminal law is a highly specialized tool of social control, useful for certain purposes but not for others; that when improperly used it is capable of producing more evil than good; that the decision to criminalize any particular behavior must consider and follow first, the concept and theory of crime, second, the Principle of Proportionality, third, the Structure of Crime respectively. If these smart justice measures were adopted, ordinary citizens would be able to rely on their intuitive notions of right and wrong to alert them to the fact that they may be committing a crime given that the lines between minor offenses and serious crimes would be seen clearly. Besides, an administrative offense which differs from a crime by the lesser degree of social danger would be distinguished from criminal offense. Giving
special emphasis to the indispensable process of screening and assessing prior to the law comes into effect, the legal institute and provisions governing the coming into force of statutes shall be established. Last but not least, these approaches will assist us in preventing new Over Criminalization, also reversing the Over Criminalization that has already occurred.