BYU Law Review


According to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense.

This Article argues that the difference in standing requirements between civil and criminal cases is unwarranted. The various justifications provided for standing—the text of Article III, historical practice, principles of separation of powers, and a host of practical considerations—all support imposing the same standing requirements in civil and criminal cases. Moreover, maintaining the different standing requirements has various undesirable consequences. It results in the government having broader access to the courts to enforce its interests than individuals to enforce their rights, and it tends to devalue civil rights relative to government interests. It also encourages the proliferation of criminal laws. Because a lower standing threshold applies to criminal cases, criminal law is a more robust and flexible tool for regulation than civil laws conferring individual rights. This advantage incentivizes Congress to regulate through criminal law—thus contributing to the problems of overcriminalization and mass incarceration.


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