From The Heritage Foundation:
by Gerard V. Bradley
The Heritage Foundation
March 01, 2012
From the ever-expanding number of federal criminal laws to prison sentences that are too numerous or too long, there are many promising bases for criticizing overcriminalization. One such basis, however, has yet to be fully considered: the fact that too many criminal offenses today are malum prohibitum offenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. In order to limit the growth of laws criminalizing morally innocuous conduct—a development that, in turn, would curb overcriminalization—the United States legal community would be well-served to explore the concept of retribution and the manner in which it provides an account of how punishing those convicted of criminal offenses is morally justified. Punishment without a firm basis in retribution is unjust and therefore should be avoided.
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