One of the criminal justice system’s most overlooked features is that it is vulnerable to a tragedy of the commons: a collective action problem that destroys open-access resources. A tragedy of the commons occurs when too many users over-exploit an open-access resource, which results in its demise. Over-fishing, deforestation, and over-grazing are examples of this collective action problem. Two features of open-access resources expose them to tragedy: limited excludability — meaning a restricted power to exclude others — and subtractability — where one person’s use of a resource lowers its quality for others.

This Article argues that the criminal justice system operates like a commons that is prone to tragedy. A tragedy of the criminal justice commons occurs when too many defendants enter the justice system and attempt to exploit its scarce resources, which lowers the overall quality of justice. Wrongful convictions, miscarriages of justice, excessive sentences, and assembly line guilty pleas all exemplify a tragedy of the criminal justice commons.

But why does a tragedy of the criminal justice commons occur? And what can be done about it? This Article shows how the justice system constitutes an open-access resource for defendants; one that is characterized by limited excludability and subtractability. Statutory and constitutional rights restrict the State’s power to exclude defendants from using the justice system’s resources to defend themselves. And each defendant’s legal claims can impose unaccounted-for costs onto other defendants, such as delays, decreased scrutiny of individual cases, and stronger incentives to plead guilty. This Article elucidates how overcriminalization and the criminal procedure revolution laid the foundation for a tragedy of the criminal justice commons because they exacerbated the effects of limited excludability and subtractability. In response to greater resource pressures, the justice system embraced two mechanisms that encourage defendants to plead guilty and self-exclude from the criminal justice commons: coercive plea bargains and underfunding. The concluding parts of this Article offer concrete proposals that address the effects of overcriminalization and underfunding, and ultimately, aim to prevent a tragedy of the criminal justice commons: hard prosecutorial screening, misdemeanor decriminalization, and defense salary and caseload parity.