In an article entitled “The Pathological Politics of Criminal Law,” Prof. William Stuntz observed that “virtually everyone who has written about federal criminal law has bemoaned its expansion.” (W. Stuntz, “The Pathological Politics of Criminal Law,” 100 Mich. L. Rev. 505, 508 (2001-2002); there are now more than 4,000 federal criminal laws.) Part of the reason for the expansion is what Stuntz called “[s]ymbolic criminalization”—enacting new laws in response to national headlines to make a symbolic statement to voters. One example of symbolic criminalization, which has received too little attention, is the Identity Theft Penalty Enhancement Act of 2004. Rarely has Congress passed a more ill-conceived criminal law. (For a thoughtful discussion of federal identity theft law, see J. Martin, “Inappropriate Identity Theft Charges in White Collar Cases,” Law360 7/14/14.)
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