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Perhaps ever since legislatures started defining crimes, they have given prosecutors a variety of ways to prosecute the same conduct. Courts have, almost without exception, deferred to legislatures' broad definitions of crime. Kidnapping statutes are the exception. The high profile execution of Caryl Chessman in 1960 for kidnapping prompted considerable scholarly criticism and prompted courts nationwide to impose limiting constructions on kidnapping statutes. Recently, scholars have called for a curb in prosecutorial discretion generally, attributing the explosion in the prison population to broad criminal codes, mandatory minimums, and sentencing guidelines that provide prosecutors leverage in plea negotiations. In the last two terms, the United States Supreme Court appears to have taken on this concern, limiting the scope of federal criminal statutes, twice in cases involving criminal doctrines that are part of most state criminal codes, and once in a case expressly recognized by many of the parties as an example of overcriminalization. The Supreme Court has rarely considered "ordinary" criminal law doctrines, typically interpreting complex or jurisdictional aspects of federal criminal statutes. And neither the Supreme Court, nor any appellate court in non-kidnapping cases, has used overcriminalization as a basis for limiting the scope of a criminal statute. Academics have long criticized the growing prison population, often attributing the phenomenon to increasing prosecutorial discretion, a product of overcriminalization. The Supreme Court's recent cases suggest that America's mass incarceration epidemic may be able to prompt reforms in a way that Caryl Chessman's execution prompted reforms in kidnapping laws.

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