Mass Criminalization and Limited Government Liability

<p>Sovereign immunity, qualified immunity, and related doctrines sharply limit the tort liability that government entities and officers face for the harms they generate—a pattern this Article calls limited government liability. Courts and scholars have long debated whether these doctrines are justified, and a central axis of disagreement invokes economic deterrence theory. Proponents of limited government liability warn that expanding liability would overdeter valuable government services, chilling enforcement activity and discouraging talented individuals from public office. Critics respond that limited liability underdeters, allowing government actors to forgo taking reasonable precautions and thereby producing an excess of constitutional violations and tort harms.</p> <p><span>This Article reframes that debate by identifying a possibility both sides have largely neglected. Drawing on deterrence theory's foundational distinction between care level and activity level, the Article highlights that tort liability can do more than incentivize reasonable precautions—it can also screen socially undesirable levels of risk-generating activity. </span></p> <p><span>Applied to government enforcement, this insight destabilizes the prevailing assumption in immunity debates that any liability-induced reduction in enforcement is presumptively harmful. An extensive body of scholarship on mass incarceration, overcriminalization, and enforcement expansion argues that criminal justice enforcement in the United States has been systematically overproduced—driven by asymmetric political incentives, fiscal cost diffusion, and institutional interests that reward expansion and punish restraint. Yet this literature has developed almost entirely in isolation from debates over governmental immunity, and vice versa.</span></p> <p>By placing these two bodies of scholarship in conversation, this Article identifies limited government liability as a potentially significant and underexplored mechanism contributing to mass criminalization. By suppressing the costs of constitutional violations, wrongful imprisonment, and unlawful force, immunity doctrines function as an implicit subsidy for enforcement activity—making policing, incarceration, and immigration enforcement artificially cheap from the government's perspective, even when these activities impose severe and foreseeable harms. The Article does not claim that liability expansion would reliably produce optimal enforcement levels, but it argues that the debate over governmental immunity has proceeded from an incomplete baseline—one that assumes enforcement is at risk of underproduction without engaging extensive evidence to the contrary.</p>