Criminalization is the process of making a particular act or type of behavior illegal according to the established laws of a given area. There are a few ways in which this can happen, depending on the type of government that oversees a country or region, and the most common is for a law to be passed that criminalizes an action. Judges can sometimes criminalize a certain action, however, by ruling in a particular way that establishes a precedent for future rulings. In contrast to criminalization is decriminalization, in which an act that is illegal is changed to become legal instead.
The term “criminalization” refers to making something illegal when it was previously legal. This usually occurs in a country or region when a governmental body, such as the Legislative branch of the US government, passes a law that criminalizes a particular act. In many places, such criminalization is only applied to future actions and cannot typically be applied to actions that occurred prior to this process. Abuses of power within some governments, however, can lead to instances in which an act is criminalized in order to bring charges against a person whose actions were previously legal.
Judges can potentially be involved in criminalization, though this is often seen as an overstepping of their bounds. If a judge is ruling on a case, for example, and chooses to interpret a law in a particular way that criminalizes the actions of a party involved in the case, then this may be seen as precedent. Future cases can cite this ruling, and judges may continue to support the precedent in order to uphold the act as a crime. Many legal scholars believe that criminalization of an act should only occur if it harms others or is seen as overtly offensive without any merit.
Decriminalization is a process by which laws are changed so that an illegal act becomes legal. This can occur through new laws that alter or repeal previous laws, or through the rulings of judges that establish a precedent in which older laws are not upheld or deemed unlawful. “Over criminalization” refers to laws that are established in which the punishment for a crime is unnecessarily harsh or does not reflect the severity of the illegal action. Conflicts often arise when people wish to criminalize or decriminalize a particular act, as people on both sides of an issue argue over the usefulness, relevance, and social impact of laws governing a particular act.