Originally published at The Daily Signal by Amir Babak Banyan and Bryan Puckett | August 20, 2019
KEY TAKEAWAYS
There are hundreds of thousands of federal crimes, creating a minefield of criminal liability that Americans unknowingly walk through every day.
Prosecutors already have tremendous power, and the fewer tethers it has, the more unjust its use becomes.
The 6th Circuit deserves praise for overturning the convictions of Amir Babak Banyan and Bryan Puckett in Tennessee.Copied
In an opinion issued on Aug. 5, the 6th U.S. Circuit Court of Appeals struck a small but valuable blow against prosecutorial overreach and the problem of overcriminalization.
By now, overcriminalization—the overuse and abuse of criminal laws to address every societal concern and punish every mistake—is a familiar problem.
There are hundreds of thousands of federal crimes, creating a minefield of criminal liability that Americans unknowingly walk through every day.
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The federal criminal code and the hundreds of thousands of criminal statutes contained in federal regulations criminalize things such as making an annoying noise in a national park, allowing a horse to exceed a “slow walk” when people nearby are on foot, and using a surfboard on a beach designated for swimming.
No less serious than the problem of criminalizing all sorts of innocent behavior is the problem posed by overzealous prosecutors who stretch the law to obtain as many criminal convictions as possible.
As The Heritage Foundation’s Paul Larkin writes, overzealous prosecutors “might not acknowledge or even recognize instances of overcriminalization, and even if they did, they might not highlight them, because doing so would embarrass the attorney general and individual U.S. attorneys who had the authority to prevent any such prosecutions.”
In the 6th Circuit case, prosecutors charged the defendants with bank fraud, even though they didn’t commit bank fraud. The defendants did commit mortgage fraud, but the government didn’t prosecute them for that.
In fact, for reasons unknown, the prosecutors ignored that crime for five years until the statute of limitations expired.
Then, realizing that their delay cost them a mortgage fraud conviction, the prosecutors searched the criminal code for some law that might let them prosecute the defendants anyway. They settled on bank fraud, even though the defendants’ crime didn’t fit the bill.
But the court refused to expand the law because the bank fraud statute “is as straightforward as they come” and plainly did not cover mortgage fraud. It ordered that the defendants be acquitted.
That was the right outcome.
You might counter, “The defendants were guilty of something. Surely they should go to jail, regardless of the prosecutors’ mistake.” But that flips due process on its head, allowing the government to lock people up whenever—and for whatever—it wants.
Prosecutors already have tremendous power, and the fewer tethers it has, the more unjust its use becomes.
Consider the case of Eddie Leroy Anderson and his son.
Prosecutors charged them with federal felonies for looking for arrowheads on federal land. Although they found no arrowheads, prosecutors argued that the mere act of looking for them was an attempt to violate an obscure law that the father and son didn’t know existed.
Facing felony convictions and prison terms, Anderson and his son pleaded guilty to lesser charges.
In another case, prosecutors charged a fisherman with destruction of “tangible objects” in violation of a law designed to prevent financial companies from destroying records of fraudulent activities.
The Supreme Court reversed the fisherman’s conviction and held that although fish are, strictly speaking, tangible objects, prosecuting the fisherman for throwing fish back into the sea was an impermissible expansion of a law designed to target financial crimes.
In each of these cases, prosecutors zealously sought a conviction, but never stopped to ask if they were doing justice.
The 6th Circuit deserves praise for overturning the convictions of Amir Babak Banyan and Bryan Puckett in Tennessee.
In so doing, the court reminded the prosecutors that liberty is best protected by interpreting criminal statutes narrowly and putting the burden squarely on the government to apply the right laws to the right crimes.
Prosecutors would do well to remember U.S. Supreme Court Justice George Sutherland’s admonition in a 1935 ruling that although a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.”
This piece originally appeared in The Daily Signal
Originally published at National Review by Michael Tanner | May 29, 2019
Both Trump and the Democrats have brought attention to the issue.
While we should expect the upcoming presidential campaign to focus on traditional issues of the economy, taxes, foreign policy, trade, and immigration — as well as the elephant in the room that is Donald Trump — criminal-justice reform has become a surprisingly hot topic on the campaign trail.
At one point, every presidential candidate pretended he was running for sheriff. “Tough on crime” was considered the ultimate badge of honor — in both parties. Bill Clinton even rushed home during his campaign to execute a mentally disabled murderer. Times have clearly changed. T
This is in part due to the growing evidence of racial and class inequities within the criminal-justice system. Studies also show that failures within our criminal-justice system contribute to poverty and dependence. A recent YouGov poll conducted on behalf of the Cato Institute found that 22 percent of the unemployed and 23 percent of people on welfare had been unable to find a job because of a criminal record. Scholars at Villanova have concluded that mass incarceration increases the U.S. poverty rate by as much as 20 percent. It has also become clear that overcriminalization and mass incarceration have not necessarily made us safer. Support for criminal-justice reform now cuts across party lines.
But there is also a large degree of politics behind the sudden importance of criminal-justice reform on the campaign trail. Most important, Democratic frontrunner Joe Biden is perceived as being vulnerable on the issue. Biden supported and partially wrote the 1994 Violent Crime Control and Law Enforcement Act, which led to an increase in incarceration — especially among African Americans. He also supported and sponsored several pieces of legislation that enhanced sentencing for drug-related crimes, once again contributing to the mass incarceration of minorities.
Even President Trump has taken the opportunity to tweak Biden on the issue, tweeting, “Anyone associated with the 1994 Crime Bill will not have a chance of being elected. In particular, African Americans will not be able [sic] to vote for you. I, on the other hand, was responsible for Criminal Justice Reform, which had tremendous support, and helped fix the bad 1994 Bill!” And in a second tweet, Trump noted that “Super Predator was the term associated with the 1994 Crime Bill that Sleepy Joe Biden was so heavily involved in passing. That was a dark period in American History, but has Sleepy Joe apologized? No!”
Trump is not exactly the best messenger on this front, given his at least implied support for police abuses. But he is correct that he signed the FIRST STEP Act, the first important federal prison and criminal-justice reform in many years. As a policy, it was modest stuff, but it symbolically highlighted the changing politics of the issue.
Biden is not the only one with vulnerabilities on criminal justice. During her time as a prosecutor, Kamala Harris vigorously enforced California’s three-strikes law, actively pursued drug users and sex workers, and even prosecuted the parents of truant children. She was also an outspoken supporter of asset forfeiture and the use of solitary confinement in prisons. She backed capital punishment and resisted calls to investigate some police shootings.
So far, she has responded by apologizing for her past positions, now saying, “Too many black and brown Americans are locked up. From mass incarceration to cash bail to policing, our criminal-justice system needs drastic repair.” She has also sponsored the Equal Defense Act, which increases funding for public defenders. Still, criminal-justice activists have remained critical, complaining that she has ducked specific reform proposals.
Other Democrats also have hurdles to overcome. Bernie Sanders, for instance, voted for the 1994 crime bill, although he had a much lower profile than Biden. And, like Harris, Senator Amy Klobuchar also has a background as a prosecutor. Her low poll standing has kept it from becoming an issue yet, but she may eventually face some tough questions about her actions in that office. Even South Bend mayor Pete Buttigieg has faced scrutiny over his handling of police-abuse complaints during his tenure as mayor.
On the other hand, candidates such as Cory Booker, Elizabeth Warren, and Beto O’Rourke are better positioned on the issue. Booker, in particular, has championed justice reform. He has introduced the Next Step Act, which would expand upon the FIRST STEP Act. Booker is also calling for cutting minimum drug sentencing in half, legalizing marijuana, removing barriers to entry in the job market for those with felony records, and reinstating the right of felons to vote in federal elections.
Beto pushed for criminal-justice reform during his Senate campaign in Texas and has reiterated his support during his presidential campaign. During his Texas campaign, he stated that he would like Texas to lead the way on criminal-justice reform. He supports ending cash bail at the state level, making for-profit prisons illegal, ending mandatory-minimum sentencing for nonviolent drug offenses, and legalizing marijuana.1
Warren has been far less specific, mostly limiting herself to rhetoric about the “racist” criminal-justice system. For a candidate whose claim to fame is “I have a plan for that,” she is remarkably vague on this issue. Still, she carries far less past baggage than others, leaving her an opening.
With more than two dozen candidates in the Democratic primary and a general election that is looking extremely close, even secondary issues could play an outsized role in deciding the outcome. Keep your eyes on criminal-justice reform.
Originally published at Cato Institute by John Pfaff | April 16, 2019
Case: Whren v. US
I am pleased to have this chance to share some thoughts on Sarah Seo’s new book, Policing the Open Road, about the relationship between our car-centered culture and policing. The fascinating historical story she tells—how the introduction of the mass-produced car, which seems so unrelated to criminal justice, led to fundamental changes in policing—alone makes her introductory essay worth reading. Like: why are the police trained to be polite? Because when they started policing roads, they suddenly came into contract with middle- and upper-class citizens, and their prior gruffness was no longer acceptable.
Perhaps more important, Seo’s book is part of a critical refocusing of our discussion of criminal justice reform, away from mass incarceration (where I spend most of my time) and towards mass punishment. Most reform discussions focus on prisons, and prison populations are the central metric by which we compare ourselves to other countries and our own past. But prisons, and the generally serious offenses that send people there, are just the tip of the punishment iceberg. While there are about 1.4 million people in prison, we send over 10 million to jails every year, and we make about 10 or 11 million arrests—most of which are for offenses that will never send someone to prison (only about 500,000 are for serious violence and 1.3 million for serious property crimes).
In other words, while our reform efforts tend to focus on felonies and prisons—on incarceration—almost everyone’s contact with criminal justice is through the far vaster, far more invisible, and far more disorganized world of Misdemeanorland (to steal Issa Kohler-Hausmann’s fantastic neologism). And as people like Kohler-Hausmann and Alexandra Natapoff (in her Punishment Without Crime) have recently shown, the overall impact of Misdemeanorland surely dwarfs that of the felony system, even if it receives only a fraction of the attention. Seo’s examination of policing automobiles is an important contribution to this, since she is looking at the single most common form of police-citizen interaction (at least for those who do not live in a small subset of heavily policed urban neighborhoods), and one of the few that easily and frequently crosses the lines of race and class.
In fact, it was this universality of traffic stops that jumped out at me, leading first to one troubling observation and then to one troubling question.
To start, Seo’s account complicates some aspects of the narrative we rely on to explain why our system is so punitive, especially at the misdemeanor level. Oftentimes discussions about criminal justice reform turn to the issue of “overcriminalization,” the idea that we criminalize too much conduct that should not be a crime in the first place. By and large, this is somewhat of a red herring in the context of felonies and prison populations; even if many of the people in prison need not be there (or be there for as long), almost all have often been convicted of conduct we all agree should remain criminalized (like assault or theft). But it is not a minor point when we get to Misdemeanorland.
Misdemeanorland is defined by overcriminalization. We have criminalized as misdemeanors all sorts of conduct that is unappealing and problematic but almost certainly not deserving of any sort of criminal punishment, like jaywalking, spitting on the street—or even non-reckless speeding. And even when the conduct these low-level laws target may seem criminally problematic, the laws are often drafted so broadly that they cover all sorts of behavior they surely shouldn’t.
Most discussions of this overcriminalization of Misdemeanorland frame it as the logical end-result of America’s deep-seated racism and classism. We quickly turn to Misdemeanorland to handle things like speeding or playing loud music because of an almost instinctive desire to punish the poor, people of color, and especially poor people of color, a response that crowds out less punitive ways to address these issues.
That instinct is no doubt significant, but Seo’s account introduces an important wrinkle to this take.
When states first stated regulating driving, the people driving were far more likely to be middle- or upper-class and white—they very people we think (correctly) that the system goes out of its way to treat better. Yet even here, our instinct was to regulate driving primarily through the criminal code and police enforcement. As Seo points out, the rise of the car led to wealthier Americans suddenly having encounters with the (rapidly expanding) police, not with local and state governments coming up with new non-police ways to regulate driving. And the statutory responses were often punitive as well. In Georgia, for example, every traffic violation is a misdemeanor carrying not only the risk of a fine but of jail time.
Now, to be absolutely clear, if wealthier white Americans and their families and friends were repeatedly subjected to the indignities of our massive misdemeanor system—arrested and cuffed in public, shipped off to Rikers for a few days, and then saddled with fines and fees and restrictions on liberty for nothing more than, say, crossing in the middle of the street or driving without a seatbelt on—we would surely see a massive push for changes, and Misdemeanorland would not be nearly as invisible to most people as it is.
But Seo’s historical account points out just how deeply held our punitive instinct is. It is an instinct that has waxed and waned, to be sure—our incarceration rates have been much lower in the past, even when national politics were surely more punitive—but Seo’s story of cars and policing and driving misdemeanors is an important reminder of just how broad that instinct can be.
Seo’s discussion of the normalcy of traffic stops also brought up for me an intriguing question about policing reform. While there is a broad bipartisan consensus for prison reform, such is not the case for policing, and I wonder if traffic policing, and the civility-in-policing norms it created, is one reason why. Despite new data about the remarkable number of Americans who know someone who has had at least some contact with prisons or jails, those two institutions remain generally alien to most people. When we hear that conditions are awful or abusive, many if not most voters do not filter that information through any personal experience.
Such is not the case, however, for policing. Far more people have had interactions with the police than with prison or jail, and most of those interactions have been via traffic stops—stops where the police, as Seo points out, have been trained to be more polite. So when people otherwise uninvolved with the criminal justice system hear about police brutality, aggressiveness, and harassment, they have personal experiences to turn to—experiences that do not line up with those accounts. “Well, all my interactions with the police have been polite and respectful” might be anecdotal reasoning, but it is often compelling anecdotal reasoning.
Obviously the solution isn’t to encourage police to be less civil when stopping suburban motorists. But by highlighting the unique ubiquity of police vehicle stops, Seo may have also shed light on why efforts to reform policing seem to face more of an upward battle than those to fix other aspects of our flawed criminal justice system.
Originally published at Cato Unbound by Sarah A. Seo | April 8, 2019
Case: Whren v. US
United States began when a vice squad officer noticed a Pathfinder SUV with temporary license plates waiting at a stop sign for more than 20 seconds—an unusually long time to pause at an empty intersection—in what the officer considered a “high drug area” of Washington, D.C. Inside were two young black men. Suspicious, but without any specific reasons that the car’s occupants might be committing a crime, the officer stopped the car for making a right turn without signaling and driving at an “unreasonable” speed. When the officer stepped up to the driver-side window, he saw two plastic bags of crack cocaine in Michael Whren’s hands.
Whren and his friend in the passenger seat appealed their federal drug convictions to the Supreme Court. They argued that pretextual traffic stops violated the Fourth Amendment, which prohibits “unreasonable searches and seizures” and generally requires an articulable suspicion to stop—that is, to make a “seizure” of—an individual. Because the officer did not have legal cause to act on his mere hunch that criminal activity was afoot, he relied on minor traffic violations to investigate.
During oral argument, Justice Sandra Day O’Connor remarked, “I don’t know of any other area that works” like traffic laws, where “sooner or later most of us are going to commit some traffic violation for which we could get a ticket.” The petitioners’ lawyer finished the thought, arguing that laws that everyone violates—thereby making perfect enforcement impossible—gave the police unlimited discretion to enforce them in discriminatory ways.
Pretextual enforcement of the traffic code has been an official strategy in the war on drugs since at least the 1980s. The U.S. Drug Enforcement Agency trained state highway patrols to use such tactics, as did law-enforcement textbooks. Statistics show that police have disproportionately targeted minorities during what is known as “criminal patrol,” a term that reflects the merger of criminal investigations and traffic patrol duties.
The social and legal developments that have led to the systematic policing of minorities, however, did not begin with an intent to do so. The history of discretionary policing, which today enables racialized policing, actually begins with the mass production of the automobile and the practical need to regulate upstanding citizens.
Mass-produced cars rolled off assembly lines around 1910 and took over Main Streets that were originally intended for pedestrians and horse-drawn carriages. Police chiefs throughout the country soon pointed to vehicular traffic and accidents as the biggest problems they faced. To impose order and to ensure public safety, local governments passed long lists of traffic rules and regulations. In addition to speed limits and license requirements, new laws mandated safety equipment, like non-glaring headlights and rearview mirrors. They also coordinated driving norms, for example, by determining who among cars, horses, carriages, and pedestrians had the right of way; and by specifying the speed at which cars could overtake horse-drawn coaches and trolleys. Within a decade, the number of regulations grew exponentially and only continued to multiply.
Extensive traffic codes created an unprecedented enforcement challenge: everybody violated them. That included both drivers and non-drivers, as walking customs became subject to much more regulation when pedestrians had to share the streets with cars. Jaywalking, for instance, entered the lexicon after the mass production of cars. Particularly disturbing was the fact that early motor vehicle owners—traffic violators—were mostly well-to-do. By 1926, a majority of American families owned a car, and it was no less reassuring that this broader population also routinely engaged in law-breaking behavior while on the streets and highways. Officials, experts, and pundits were perturbed that decent Americans would obstinately refuse to follow the rules of the road.
Before cars, the police were few in number and dealt mainly with those on the margins of society, like vagrants and drunks. After cars, the police also had to discipline the respectable citizenry. For the first time, all “law-abiding citizens” (notwithstanding their traffic violations) were subject to policing. From today’s perspective, the democratization of policing may sound preposterous. But this was a consequence of mass automobility. In the American car-dominated society, the traffic stop soon became—and remains today—the “chief point of personal contact between the individual citizen and the law,” as one Yale Law professor put it.
Certainly, the police were also handling more criminal investigations than before, and much of their burgeoning caseload also arose from automobility. The getaway car aided the commission of crimes, especially since law officers could not follow suspects outside their jurisdiction. Until 1934, when the doctrine of hot pursuit entered the common law, fleeing fugitives took advantage of a multi-jurisdictional landscape. Cars also introduced a new crime, auto theft, which became one of the most common crimes in the twentieth century.
But in the federalist United States, where local governments typically handled issues of crime and punishment, criminal mobility did not necessarily lead to bigger police forces and greater police powers. A crime that unfolded over multiple jurisdictions rendered responsibility for the case uncertain, which not only hindered many local prosecutions but also deterred local officials from being more proactive. City or county governments were reluctant to spend money enlarging their police departments to go hunting for criminals who might not fall entirely within their purview.
It also did not make sense for municipalities to spend more money as long as the pursuit and prosecution of crime was largely a private matter. Until the early twentieth century, it was usually citizens themselves who brought charges against those who harmed them or stole from them. Wealthier folks and institutions like banks hired private patrols, detectives, and investigators. Indeed, it was insurance companies that were on the front lines of fighting auto theft.
What finally prompted local governments to invest in more police was traffic law enforcement. The policeman’s duties were to preserve the peace, maintain order, and protect life and property. Mass automobility disturbed peace and order, endangered life, and destroyed property. To manage the fast-growing numbers of “law-abiding” traffic violators, towns and cities throughout the country not only added more manpower, they also strengthened officers’ authority. For instance, in 1924, the National Conference of Street and Highway Safety recommended a new law that made the refusal or failure to comply with any order or direction from a traffic officer a misdemeanor.
These expansions in policing occurred at the state level as well. In 1905, only five states had some form of state police. They were unnecessary when criminal prosecution was a local and private matter, and the idea of centralized police was anathema in the United States. But by the end of the 1930s, almost every state established a police force for the primary purpose of enforcing traffic laws. Officials quickly discovered that while looking for safety violations, patrollers could also look for stolen vehicles and illicit liquor. Traffic and criminal law enforcement began to overlap.
The policing of cars created a conundrum both profound and practical. What did freedom mean in a modern, automotive society that policed all its citizens? And more delicately, how could the police discipline “law-abiding” drivers without antagonizing them? This was especially challenging when it was difficult to tell the difference between criminal suspects and ordinary traffic violators; after all, everybody drove standardized cars. Defendants who challenged police stops and searches of their cars often argued for greater constitutional constraints on police by invoking the interests of “Everyman,” a variant of “law-abiding citizen.” Those who used these seemingly generic labels meant to be all-embracing. But Everyman was hardly a class-, race-, or gender-neutral figure. The term held significance precisely because it conjured a white man from a respectable class who, before cars, had largely been shielded from policing.
The need to regulate drivers and to do so without giving offense necessitated changes to the police function. For one thing, courtesy became a hallmark of professionalized police. In the early years of the automobile, whenever the National Police Journal profiled the achievements of a progressive department, it invariably mentioned how the reforming police chief instilled courtesy in his force.
The mandate that officers act courteously arose most frequently in the context of traffic law enforcement. This association was most explicit in the name of South Dakota’s highway patrol, which was called the “Courtesy Patrol” until 1937, when it was rechristened the “Motor Patrol.” Colorado similarly had the “Highway Courtesy Patrol,” which did not change its name until 1945. Although courtesy emerged from the need to discipline the motoring population, it eventually became a general policy. Many municipal codes, like San Francisco’s, required officers to act “in a courteous manner.” Even if not legally obligated, the Law Enforcement Code of Ethics, published in 1956, obliged officers to “enforce the law courteously.”
It is unlikely that courtesy would have become a badge of police professionalism if respectable citizens were not policed. One indication of this counterfactual comes from the Los Angeles County grand jury in 1932. After receiving numerous complaints, this group of esteemed citizens issued a recommendation to the police department to “make it their business to see that the members of the police force are courteous in their dealings with the citizens”—presumably during a traffic stop, when most of these dealings occurred. But this courtesy, the grand jury report continued, ought not to be extended to “dangerous and known criminals,” but just to “the average citizen.” Implicit in the grand jury’s directive was an instruction to use good judgment, or discretion, to distinguish the respectable from the dangerous.
Scholars and activists today point to discretion as the source of discriminatory policing. That is true. But the early history of policing cars suggests that the initial reason for greater police discretion was to benefit the respectable citizenry.
In fact, white papers and officer training manuals all recommended that the police exercise discretion when directing traffic. One expert insisted that “all traffic violators cannot and should not be handled in exactly the same manner.” It was up to the individual officer to determine how best to proceed in each case, whether it was to ignore the infraction, give a warning, write a citation, or make an arrest. Police consultants advised officers to take the most lenient option or even to decide not to attempt enforcement at all for fear of alienating respectable members of society. If a belligerent traffic cop angered the citizen-driver and aggrieved his or hersense of dignity, that person might, at best, create a public relations headache; at worst, his or her disrespect for law enforcement would undermine the rule of law. Criminal elements did not present this problem; the upright did. Officers thus needed discretion to decide, in the moment, whether a given driver deserved courtesy or not.
Legal changes mirrored the new mandates of courtesy and good judgment. Discretionary policing certainly existed in practice before the advent of the modern motor car, but it did not receive much scrutiny. After cars, police discretion became a recurring constitutional issue under the Fourth Amendment. Because the first moment in a police encounter is a stop, or “seizure,” which could then be followed by a “search,” the guarantee against “unreasonable searches and seizures” has been the main provision governing the police, under both the U.S. Constitution and state constitutions.
Until the early twentieth century, searches and seizures of “persons, houses, papers, and effects,” as listed in the Fourth Amendment, required a warrant. There were well-established exceptions, but the warrant requirement was the general rule. Cars should have fallen under the category of “effects.” But state courts throughout the country, and the Supreme Court in the 1925 case Carroll v. United States, created what is now called the “automobile exception,” which permits officers to stop a car without a warrant if they have reasonable or probable cause to believe it was transporting contraband, which was liquor in most cases during the Prohibition era of the 1920s. Not requiring warrants but still requiring probable cause seemed like an appropriate compromise between the needs of law enforcement and the rights of citizen-drivers.
By setting aside the warrant requirement, however, courts sanctioned police discretion, for the individual officer, rather than a neutral magistrate, would decide in the first instance whether to search a car or to allow the driver to go on his or her way without further ado. As courts were wont to point out when reviewing police action, the Fourth Amendment did not prohibit warrantless searches and seizures, but only those that were “unreasonable.” Over the twentieth century, as the United States became an automotive society, Fourth Amendment jurisprudence shifted emphasis from a question of warrants to a question of reasonableness, which centered on the police’s exercise of discretion.
Was it reasonable for an officer to force a car into a roadside ditch based only on the driver’s reputation as a rum runner? Was it reasonable to arrest a suspected bootlegger for passing in a no-passing zone and then to search the trunk of his seized car? Was it reasonable to search inside the pockets of a jacket left on the backseat of a car? Was it reasonable to search containers found inside the pockets of an overcoat worn by a driver arrested for driving with a revoked license? Was it reasonable for an officer to ask drivers where they were coming from and where they were going for any reason or no reason at all?
As Fourth Amendment cases proliferated, reflecting the welter of life that confronted police officers, the rules of decision became increasingly fact-based, complex, and inconsistent. One law professor pointedly called this area of law an “embarrassment,” while another declared that it was “in tatters.” It was not easy for judges, including Supreme Court justices, to pin down a definition of reasonable policing, let alone to flesh out a coherent theory for determining reasonableness. It proved difficult for judges to second-guess the police’s exercise of discretion when it was the guilty, not the innocent, who raised Fourth Amendment challenges. All the more so when the nature of police work often involved split-second decisionmaking in uncertain circumstances.
This was especially true when patrolling the byways and highways. Law enforcement advocates argued that traffic stops were “one of the most dangerous aspects of police work” because officers, when approaching a car, exposed themselves to an unknown situation. Their argument carried the weight of experience that judges did not share. Law enforcement advocates soon learned to marshal the exigencies of traffic stops to justify greater police powers even when the legal question at issue did not pertain to cars. In the twentieth-century United States, policing the automobile had become synonymous with policing American society.
In case after case, courts concluded that the police had acted reasonably. As a leading Fourth Amendment scholar explained, the reasonableness standard essentially meant that “appellate courts defer to trial courts and trial courts defer to the police.” Every now and then, an individual defendant won. But more often, reasonableness functioned as a deferential standard, which then migrated to other areas of law as well. An early 1970s textbook explained that the “system of criminal justice abundantly provides for broad use of discretion by its law enforcement officers.” In support, it pointed to “specific sections of the criminal codes” that incorporated police discretion through the word “reasonable.”
This brings us back to Whren v. United States. It was reasonable, according to the Supreme Court, for the police to use a minor traffic violation as a way to look for drugs. According to the unanimous opinion, “the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent” of the officer. Those circumstances included a car stop for a traffic violation, which any officer with a modicum of patience will eventually observe of almost any driver. For all nine justices, it seemed untenable to hold that enforcement of a valid law could violate the Fourth Amendment, even if motivated by pretextual reasons.
Whren was just one of many cases that began with a minor traffic violation and ended with a drug conviction. “Criminal patrol” has indeed been an effective law-enforcement strategy in the war on drugs, which has been waged mostly against racial minorities. But what made “criminal patrol” possible is the combination of too many traffic laws and constitutional deference to police discretion. Both developments had their origins in the need to govern Americans on the road.
This history had far-reaching consequences on the meaning of freedom. When American society turned to the police to maintain highway safety and order, the defense of liberty was not simply about restraining the police’s power. The challenge, as Policing the Open Road makes clear, was to figure out how to incorporate policing within the meaning of freedom itself.
There is a great irony to writing a column about overzealous prosecutors in the shadow of the first Paul Manafort sentence where it appears by any measure that he secured a remarkably lenient sentence. Yet my recent series in Forbes.com on the disquieting trend toward criminalizing “normal” American enterprise stirred more than a few pointed comments. The most common response? “Have I got a story for you!”
Genuine criminal misconduct is one thing. If a company or an executive knowingly, maliciously, and repeatedly violates the law, they deserve society’s censure, plus jail time if warranted.
But what if their “misdeed” is not the product of willful or malevolent behavior? What if their action would have passed legal muster until very recently? Even worse, what if their prosecution was triggered by an overly ambitious prosecutor looking for a headline and a healthy settlement?Today In: Leadership
It’s this apprehension that elicited the most comments. The National Association of Criminal Defense Lawyers (NACDL), as well as prominent attorneys, shared a litany of alarming stories. Indeed, NACDL’s analysis reveals that some 95% of all criminal convictions are now obtained through plea bargaining instead of jury trials. Prosecutors know that few companies can afford the expense and the jarring publicity generated by a high-profile trial.
Kamenar specifically cited the nightmare experiences of two corporate CEOs in the medical field. Todd Farha, a young Harvard MBA businessman and former CEO of WellCare Health Plans, was convicted and sentenced to prison in 2014 for Medicaid fraud, but not because the company provided faulty services. Instead, he was found guilty for not calculating what the government argued was the “proper” amount of Medicaid funds to rebate, which hinged on a vague and confusing regulatory accounting formula. Third-party experts agreed that the interpretation of the refund formula by the CEO, the CFO, and the General Counsel was reasonable. Moreover, there were ample administrative and civil remedies to correct any disputed overpayments, particularly where requisite criminal intent was lacking. The NACDL has a special link with nearly three dozen articles, op-eds, podcasts, and legal briefs devoted to this unfair prosecution. They’re worth a careful read.
Howard Root, the former CEO of Minnesota-based Vascular Solutions, Inc., and author of Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit-List, spent a half-decade and $25 million (!) in legal fees combating what proved to be a groundless Department of Justice (DoJ) claim that his company was fraudulently marketing a vascular health device. An embittered ex-employee of Vascular had leveled the reckless charge – and DoJ bought into it, ignoring the fact that the device in question had never harmed a patient and represented less than one percent of the company’s overall sales.
After being put through a legal labyrinth, he and Vascular were eventually acquitted of all wrongdoing. Not long ago he sold Vascular for a billion dollars, which must have been a gratifying moment.
“I wish my story was a lightning strike in the perfect storm – a few unscrupulous prosecutors conned by desperate whistleblowers,” Root says today. “But prosecutions like mine are exploding across the United States. When prosecutors can use false criminal charges to destroy everyone except the few wealthy and unbroken defendants like me, then virtually everyone is in danger – even if you’ve done nothing wrong.”
Have we entered a period where only the exceptionally wealthy can defend themselves against the state, regardless of the charge? And, worse still, are we reaching a tipping point where the very fear of long-arm prosecution will deflate capitalism’s beating heart? I grew up professionally in the Ralph Nader consumer network and always trained to defend the citizen, not the corporate executive. If you have someone like me scratching their head, we may be well past the tipping point.
Among the businesspeople who find themselves caught in Root’s “perfect storm” of legal jeopardy are corporate executives like Farha who have adhered to the advice of in-house counsel. What was previously deemed “routine” or “innocuous” is, in today’s litigious climate, seen by overzealous prosecutors as unlawful – or grounds for a high-profile settlement. In other words, following the advice of counsel is no guarantee of liberty, even when good faith is never in question.
“With over 4,450 crimes scattered throughout the federal criminal code, and untold numbers of federal regulatory criminal provisions, our nation’s addiction to criminalization backlogs our judiciary, overflows our prisons, and forces innocent individuals to plead guilty not because they actually are, but because exercising their constitutional right to a trial is prohibitively expensive and too much of a risk,” maintains NACDL. “This inefficient and ineffective system is, of course, a tremendous taxpayer burden.”
The burden extends beyond taxpayers. As Scott D. Marrs, Akerman’s Regional Managing Partner – Texas and our collaborator on the overcriminalization series, puts it: “Not many clients have the unlimited resources and thickness of skin to get into a nasty trial climate. Often the percentage move is to agree to a settlement – even if the client hasn’t done anything unlawful. That’s not a healthy situation for anyone.”
It also may not be healthy that certain corporations have taken to hiring former prosecutors to help them avert unfair prosecutions.
These former prosecutors appear to be preaching voluntary disclosure – urging companies to be as upfront and transparent as possible. The fewer corporate activities seen as furtive, the greater the likelihood that prosecutors will look elsewhere. Transparency always carries a degree of risk; but the risk associated with opacity is, in this instance, far greater.
“As far as deciding which firms to prosecute,” observes Professor Eugene Soltes, an Associate Professor of Business Administration at Harvard Business School and the author of Why They Do It: Inside the Mind of the White-Collar Criminal, “I think the biggest shift has been around voluntary disclosure – especially in the context of the Foreign Corrupt Practices Act (FCPA). Firms that bring such issues to prosecutors can qualify to not be charged if they are fully transparent. This is an important shift in policy and changes the calculus about how firms approach some of these issues.”
Achieving a level of voluntary disclosure that might dissuade a prosecutor from launching an investigation is easier said than done. What other steps can companies take to try and inoculate themselves?
First and foremost, companies shouldn’t go it alone. Retain expert legal and communications counsel, and engage all key senior leaders, beginning with the general counsel’s office, public affairs, communications, and marketing.
Second, the CEO and the GC need to dictate from day one that the fewer non-transparent activities, the better. Sure, there are proprietary initiatives and secret-sauce recipes that can’t be exposed to sunlight, but they should be few and far between.
Third, don’t wait until something unsavory happens: move now, during peacetime. Once the charge has gone public, it’s too late.
Fourth, and this requires some collective action, join with associations, law professors, former prosecutors, and think tanks such as those mentioned above, as well as others known for their free enterprise and judicial fairness views, and articulate the need for balance. Produce videos to help dominate the search engines so that the challenge of overzealous prosecution becomes a national cause more than the sound and fury of a single victim. The overregulation argument is an old saw that has lost a lot of its firepower because it was used for decades as an argument against all regulation. Show the negative impact on jurisprudence, business, the public trust or public policy, not just the potential negative impact on a single company or executive. The larger the risk to other audiences, the more likely the issue is to gain traction and sympathy.
Finally, collect and publicize the most egregious examples; rather than allowing selfish prosecutors to dominate headlines, try to engage the public square with capitalism’s reliance on fairness, not intimidation, as the lodestar. Applaud proper prosecutions and argue for some regulation while changing the national dialogue to address the discretion and intimidation that have become prosecutorial weapons rather than scales of justice. This strategy was adopted a few years ago by the FCPA defense bar, which substantially changed the national dialogue.
Amid the FCPA debate, DoJ and Securities and Exchange Commission (SEC) lawyers increasingly saw a “don’t over-prosecute” message every time they searched the Internet. If you want to impact collective behavior, there is no more powerful way than to influence search results; videos do that faster than anything. But you need to coordinate this with other companies, former prosecutors, thought leaders, business executives, and law professors. No one company can do this alone.
Are unwarranted prosecutions the scourge that Kamenar, Farha, Root, Marrs, and others fear? Trends certainly appear to be heading in that direction. Before a nasty prosecution heads your way, you ought to take some constructive steps.
Originally published at The Daily Signal by Jonathan Zalewski | 2/5/19
A pair of congressman from Florida announced Jan. 23 they would be introducing a bill in Congress that would make it a federal crime to abuse and torture animals.
Reps. Ted Deutch, a Democrat, and Vern Buchanan, a Republican, said those convicted of the crime would face a maximum of seven years in federal prison.
“This is commonsense, bipartisan legislation to bring some compassion to our animal laws,” Deutch said.
“For many Americans, animal welfare is an important policy issue, and the idea of animal abuse is abhorrent,” he explained.
Yes, it is important, and yes, it is abhorrent—but common sense? Not so much.
Protecting animals is a laudable aim, but this bill would take federal law too far to accomplish that end.
The Preventing Animal Cruelty and Torture (PACT) Act would make it a federal crime to crush, burn, drown, suffocate, or impale an animal or otherwise subject an animal to serious bodily harm if those acts take place on federal property or affect interstate commerce.
By criminalizing animal abuse that “affects interstate commerce,” the bill would unnecessarily interject the federal government into an issue that belongs primarily in the realm of state and local law enforcement.
In the process, the bill would spread already strained federal resources even thinner by tasking federal authorities with policing local neighborhoods and communities for animal abusers.
The fact is, animal cruelty is already illegal in every state, and local police ably enforce those laws.
While the federal government has a compelling interest in policing animal abuse on federal property, the federal government should not be in the business of “bear[ing] down on the distinctively local concern of crimes against Fido, too,” as scholars at The Heritage Foundation argued two years ago while discussing a similar bill.
The Pet and Women Safety Act of 2017, if it had passed, would have made it a federal crime to harass or intimidate a pet in a manner that causes “substantial emotional distress” to the owner.
As the Heritage scholars stated, “While no one condones violence against any [animal], common sense and principles of federalism in law enforcement suggest that the clear and compelling federal interests to pursue gangs, cartels, and the like do not as clearly apply to hunting down animal abusers.”
Crimes like arson, carjacking, and animal abuse are serious offenses, but they are generally local in nature. Needlessly involving the federal government only continues the alarming trend toward the overfederalization of crime—a symptom of the overcriminalization phenomenon.
For many years, Heritage scholars have cautioned that overfederalization wastes government resources because it tasks federal law enforcement authorities with policing local crime, distracting federal officials who ought to be focusing their efforts on truly national concerns (see here, here, and here).
Former U.S. Attorney General Edwin Meese III, the leading Heritage scholar on the issue of overfederalization, explained more than 20 years ago that the federalization of crime “invites selective prosecution, and disparate enforcement and punishment. Federal officials determine, usually on the basis of political factors, whether they will get involved in a case.”
Rather than trying to solve every problem in local communities, the federal government makes best use of its resources by protecting Americans from far greater threats posed by human traffickers, violent drug cartels, cybercriminals, and terrorist organizations, to name a few.
Congress’ efforts to intervene in matters of state and local concern also greatly expand the federal government’s police power; that is, the authority of the government to regulate the safety and well-being of citizens, which is a power reserved to the states by the federal Constitution.
As that happens, then-Supreme Court Chief Justice William Rehnquist observed in 2000, the distinction between national and local government is obliterated in favor of a “completely centralized government” incompatible with the Constitution’s “dual system of government.”
The PACT Act’s broad attempt to criminalize animal abuse on land not owned by the federal government would only further obliterate that distinction, and it would do so for no clear reason.
Animal abuse is already a crime in every state, and 46 states take the issue so seriously that they have made it a first-time felony offense.
What’s more, those laws are being actively enforced.
Just last week, three people were arrested by Virginia law enforcement officers and charged with several counts of animal abuse and neglect under the state’s criminal laws.
In Pennsylvania, a former kennel owner, with a previous animal abuse conviction, last week pleaded guilty to more criminal charges of animal abuse in violation of that state’s law.
To be sure, one could envision instances of animal abuse that might warrant federal intervention on land not owned by the federal government, such as illegal dogfighting rings that involve organized crime. But here again, federal law (see here and here) already prohibits these activities.
For instance, no new federal laws were needed to take down former NFL quarterback Michael Vick, who pleaded guilty in 2007 to violating federal law for operating a dogfighting ring on his privately owned property in Virginia.
Vick spent 23 months in federal prison for his crimes.
Federal law also prohibits the recording and distribution of animal abuse videos under the Animal Crush Video Prohibition Act in 2010—a law that was passed to deter the promotion of animal abuse over the internet.
Congress’ overfederalization of crime is a troubling trend that accelerated decades ago, leaving our federal government with resources spread too thin and the states with less power.
As I have written elsewhere, it’s easy to understand why the trend has continued apace: “Politicians like creating new criminal law[s] because it is an especially easy way for [them] to drum up political support, [as] it gives the public a sense that ‘something is being done’ about crime.”
The PACT Act is another bill that gives Americans that sense that Congress is “doing something” about crime. Unfortunately, once again, it is doing all the wrong things.
The average American unknowingly commits three or more federal crimes a day. Are there just too many laws?
Examples of Overcriminalization
A river guide was charged with “obstructing government operations” when he dove into the water to save a child instead of waiting for a search and rescue team to arrive. When a Christian outreach group offered food to homeless people in a Fort Lauderdale park, its members were arrested because a local regulation disallowed such food sharing. Thinking of advertising your business hours in Eastern Standard Time? You could be arrested and charged in at least one place in the United States.
Though they may seem ridiculous, these so-called crimes offer a window into a serious problem called overcriminalization, a side effect of making criminal law a one-size-fits-all solution for society’s problems. Our system of laws has become so big and confusing, it can turn ordinary citizens into accidental criminals.
Definition of Overcriminalization
Overcriminalization is the overuse or misuse of criminal law to address societal problems that could be remedied more effectively though the civil legal system or other institutions. It’s an issue that has mushroomed over time, as crime after crime is added to our criminal codes.
History of Overcriminalization in America
When it was enacted in 1790, the federal criminal code included just 30 crimes, but by the 1980s, the number had exploded to more than 3,000. The number of crimes in federal law and regulations today is unknown. The Department of Justice has failed many times to catalog this list, but studies estimate that there are 5,000 statutes and 300,000 regulations that carry federal criminal penalties. In the session ending in 2019, Congress introduced 154 bills that would have added new criminal penalties to the federal code. While this is a reduction from recent years, new federal crimes continue to be a significant contributor to overcriminalization.
The problem is by no means restricted to the federal government. Thousands of statutes, regulations, and local ordinances carry criminal penalties in each state. Arizona has over 4,000 statutory offenses that can result in a criminal conviction. North Carolina has added five sections to its criminal code each year since World War II, and its legislature has added 318 new crimes since 2009 alone. These numbers are compounded by the fact that our state legal systems are a patchwork of laws, where even crimes with the same name require a variety of different statutory elements across state borders.
The Accidental Criminal
The existence of so many criminal acts would reasonably lead to the assumption that there must be a defense for an individual who innocently breaks an obscure law not knowing that the conduct is illegal. In law school, every future attorney is taught that the criminal law requires an element of mens rea or criminal intent to find someone guilty. Throughout history, criminal statutes have required some form of criminal intent such as negligence, recklessness, knowledge, intent, or willfulness.
Many recent criminal statutes implemented at both the federal and state level lack mens rea standards or have unclear standards that frequently apply to conduct a reasonable person would not assume is wrong or illegal. In 2015, the Supreme Court highlighted this problem, stating that the fact a “statute does not specify any required mental state” does not dispense with the fact that criminal intent is “necessary to separate wrongful conduct from otherwise innocent conduct.” Unfortunately, the Court failed to provide a default mens rea standard so these statutes remain ambiguous.
The Consequences of Overcriminalization
The overwhelming number of criminal laws and lack of criminal intent requirements in many statutes presents a constitutional hazard given the requirement that citizens have “fair warning” of conduct that the government “commands or forbids.” Even the most intelligent and skilled attorney cannot know all that is contained in the four million pages that make up the federal criminal code. A system of law that cannot be known or understood has the potential to make accidental criminals out of ordinary citizens and represents a foundational threat to the legitimacy of our criminal laws.
The story of fisherman John Yates presents a second concern commonly raised about overcriminalization: arbitrary or abusive prosecution. Prosecutors brought charges against Yates and secured a felony conviction for a violation of the “anti-document-shredding” provision of the Sarbanes-Oxley Act. What did Mr. Yates do to deserve time in a federal prison? He threw three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal regulations, in effect destroying evidence. While the Supreme Court overturned his conviction eight years later, not everyone facing a similar situation has the chance to have the Supreme Court hear their case.
Bearing the stress and the cost of defending yourself in a case like Yates’s is just one danger of laws gone wild. Here’s another: Overcriminalization provides prosecutors with high levels of discretion to choose when to bring criminal charges for conduct that should not be considered criminal in the first place. And it provides unethical prosecutors with the opportunity to overcharge defendants for wrongful conduct as leverage to force a guilty plea.
The impact of overcriminalization extends far beyond a conviction. A criminal record doesn’t just invite societal stigma; the Council of State Governments Justice Center reports that such a record can erect an astonishing 44,000 legal barriers to a successful life. Combined, the social and legal consequences of being convicted of a crime can severely limit access to housing, employment, educational grants, and more things necessary to be a contributing member of a local community. This continuing punishment denies people a true second chance and has a negative impact on public safety and the economy. By imposing criminal penalties for such a broad range of conduct, we impose barriers to well-being for conduct that could more effectively be handled outside the criminal justice system.
Overcriminalization Reform
Our criminal law is not intended to punish every type of conduct that isn’t beneficial to society. Steps should be taken at both the federal and state level to identify and reduce the number of duplicative, unnecessary, and unjust statutes carrying criminal penalties. While many statues were adopted by well-intentioned lawmakers seeking to solve perceived or actual problems, they were often drafted in a sweeping manner resulting in the criminalization of victimless acts that cause no harm to local communities or public safety.
In 2014, Minnesota did what was previously thought to be impossible. The state removed 1,175 obsolete, unnecessary, or unreasonable laws from the state’s various legal codes. These included a prohibition against carrying fruit in an improperly sized container or driving a car in neutral as well as more serious items such as removing a duplicate of the state’s criminal negligence statute that was never actually utilized by prosecutors.
Other states are undertaking similar efforts to remove unnecessary or duplicative statutes and regulations. In recent years, Ohio and North Carolina have both begun to reduce overcriminalization through a systematic process called criminal code recodification.
Recodification attempts to locate every criminal penalty imposed by state law, resulting in a revision and reduction of a state’s criminal codes and other statutes carrying criminal penalties. One example of statutes that could be consolidated in North Carolina’s code are the dozens of larceny (a form of theft) statutes that apply to different types of property. Recodifying a state’s criminal laws can help citizens, police, and prosecutors alike more clearly understand the scope of criminal liability for certain conduct under state law.
A Matter of Intent
The punishment imposed for criminal conduct should match the offense committed and the harm caused. In order to ensure proportionality of punishment, criminal laws should distinguish between intentional acts, reckless acts, and simple accidents. Each criminal statute should carry a clearly articulated standard of intent that prosecutors must prove to acquire a conviction. A default standard should exist in law for judges to utilize in criminal cases where the intent standard of a statute is missing or ambiguous.
While Congress has failed multiple times to pass mens rea reform, two states have succeeded. Ohio adopted the nation’s first comprehensive mens rea reform in 2014, with legislation requiring that every new criminal offense enacted by the legislature include a criminal intent standard or be considered void. The new law also imposed a default mens rea standard of recklessness on all elements of existing criminal statutes that lacked such a standard. Michigan followed Ohio’s lead in 2015 by adopting similar reforms. Today, thirteen other states have some form of default criminal intent standards in their state statutes.
These are signs of hope, but there is much work to be done. Otherwise, hosting a bingo game that lasts more than five hours just might get you into big trouble.
Originally published at Manhattan-Institute by Rafael A. Mangual | January 1, 2019
The passage of the First Step Act — the criminal-justice and prison-reform bill championed by President Trump — was a rare bipartisan triumph in this age of deep polarization.
But the bill left much unaddressed and was missing another reform that conservatives have long pressed for: namely, stopping the explosion in the number of federal crimes, well beyond what the average citizen should be expected to know or abide by.
Call that the Next Step.
Given the bipartisan cooperation behind First Step, congressional Republicans should now nudge their Democratic colleagues to address the serious issue of federal overcriminalization.
That means addressing four main problems.
First, as already mentioned, there is the sheer number of federal criminal prohibitions on the books. Though no one can say for sure just how many federal crimes exist, estimates put the number at more than 300,000, a ridiculous number of crimes for Americans to be versed in.
These include prohibitions on selling “spaghetti sauce with meat” that contains less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle and walking a dog on a leash longer than six feet on federal property.
Second, a majority of federal crimes lack meaningful intent requirements, bucking centuries of legal tradition requiring that prosecutors establish mens rea (that the defendant acted with a guilty mind) to secure a conviction.
This lack of intent requirements is especially troubling considering the fact that thousands upon thousands of federal statutes could result in a felony conviction if violated.
Third, many federal crimes are, counterintuitively, codified outside the federal criminal code (Title 18). Instead, they are sprinkled throughout the many thousands of pages of federal statutes and regulations.
Finally, less than 2 percent of federal criminal law — about 5,000 of the more than 300,000 crimes — are statutes passed by both houses of Congress and signed into law by the president. Instead, the overwhelming majority are criminally enforceable regulations created by politically unaccountable bureaucrats.
This last problem is best understood as “criminalization without representation.” It is a direct threat to individual liberty and a hindrance to a well-functioning market economy.
Collectively, these problems have created a body of criminal law that is far too large and disorganized for anyone to read, let alone internalize. Coupled with the erosion of criminal-intent standards, this means that each of us by some estimates commits, on average, three federal felonies a day.
In addition to significantly raising the cost of legal compliance, which in turn raises the cost of doing business, overcriminalization tramples on core American principles of representation, fair notice and due process.
So what should the “next step” look like?
First, it should include a default criminal intent standard that would apply to any federal crime that doesn’t explicitly state whether, and to what extent, a showing of intent is a prerequisite for conviction.
This was part of an earlier bipartisan package of reforms scuttled at the last minute by the Obama administration and opposed by left-wing groups, though many of these same outfits loudly backed the First Step Act.
Second, the next reform should restore political accountability to the process of crime creation by restricting to civil enforcement all rules that haven’t passed both houses of Congress through the process most of us have been familiar with since childhood, thanks to “Schoolhouse Rock.”
Enacting such reforms to reduce federal overcriminalization would require Democrats to reciprocate the support they recently received from Republicans for First Step. Given the midterm-election results, that may be a tall order. Yet it should be made a priority not merely as a show of bipartisanship, but because, as the president said of the First Step Act, it’s “the right thing to do.”
______________________
Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute. Follow him on Twitter here.
Originally published at National Review by James R. Copland and Rafael A. Mangual| October 11, 2018
Across the country, well-meaning Americans face the threat of prosecution for violating state laws that criminalize unobjectionable behavior.
In the wake of Hurricane Florence, North Carolina prosecutors served Tammie Hedges with a twelve-count criminal indictment. Hedges runs a non-profit group, Crazy’s Claws N Paws, and during the storm she offered both shelter and basic first aid to pets whose evacuating owners could not take them along. Local officials, at the behest of the state’s Department of Agriculture, accused Ms. Hedges of practicing veterinary medicine without a license.
Facing a public outcry, prosecutors have since dropped these charges. But other individuals who find themselves in the state’s prosecutorial crosshairs have had to go to court to vindicate their rights. Among these was another North Carolinian, Steve Cooksey, who in 2012 was accused by the state of the unlicensed practice of dietetics after he blogged about his dietary practices. Cooksey eventually won a challenge before the U.S. Court of Appeals on First Amendment grounds, but Steven Pruner, another North Carolinian, was not so lucky: In 2011, he was sentenced to 45 days of police custody for selling hot dogs without a permit from his food cart outside the Duke University Medical Center.
North Carolina is hardly alone in criminally prosecuting individuals who unknowingly run afoul of picayune regulatory laws with little to no public-health or -safety purpose. An Oklahoma bartender was prosecuted for serving vodkas infused with flavors like bacon and pickles; a Minnesota man was jailed for the crime of not finishing the siding on his own house; and a California mom was prosecuted for selling homemade ceviche through a recipe-exchange group on Facebook.
In every state in the union, well-meaning individuals face the threat of prosecution for violating regulations that criminalize morally unobjectionable behavior. A new Manhattan Institute report we co-authored assesses the state of criminal law across multiple states and finds that unnecessary criminal statutes abound. States’ criminal codes are three to ten times longer than the Model Penal Code promulgated by the august collection of scholars and practitioners at the American Law Institute. More than 77 percent of new crimes are codified outside the criminal code. And a large fraction of state crimes are never voted on by elected representatives, because criminal-lawmaking power is regularly delegated to bureaucrats or even private licensing boards.
Some of the criminal regulations we have studied are silly, such as an old South Carolina law promising jail time for the unlicensed practice of fortunetelling. (Exactly how one would license a fortuneteller remains unclear.) Others make some sense — including the veterinary-licensing requirements that ensnared Ms. Hedges. (Dispensing potentially dangerous pharmaceuticals to care for Spot and Fido raises legitimate public-health and -safety concerns.) But the proliferation of criminal laws makes it almost impossible for citizens to know what can land them in handcuffs.
What, then, is to be done? There are various steps states can take to streamline their criminal laws, protect those who unknowingly violate rules, and make lawmakers more accountable.
Legislatures should focus on making their criminal laws easier to follow, as well as on trimming unnecessary, duplicative, and unjust statutes from the books. Earlier this summer, the North Carolina legislature gave its imprimatur to a working group tasked with recodifying the state’s crimes into a comprehensive criminal code. In 2014, Minnesota governor Mark Dayton called the legislature into an “unsession” focused on pruning outmoded laws; more than 1,175 crimes were repealed in the effort. Other states would be wise to follow such examples.
Legislatures should also enact rules that protect individuals who unintentionally violate a rule that does not involve dangerous or onerous conduct. All states should join the 15 that have established a default level of criminal intent that prosecutors must prove to secure a conviction, unless the legislature expressly says otherwise. States should also expand the ability of individuals to assert a “mistake of law” defense if they can show they made a genuine good-faith effort to comply with legal rules.
Finally, legislatures should stop the practice of delegating their criminal-lawmaking authority to unelected officials. Regulatory agencies may be better equipped to draft complex regulatory codes, but there is little excuse for allowing them to unilaterally write rules that can land citizens behind bars.
After all, most individuals and businesses unlucky enough to run afoul of such laws won’t be as lucky as Tammie Hedges, who escaped prosecution largely because her case made national news. If we’re serious about addressing the problem that landed an animal lover in handcuffs, it’s time we started reversing the overcriminalization of America.
Originally published at Manhattan-Institute by James R. Copland and Rafael A. Mangual | August 8, 2018
EXECUTIVE SUMMARY
Building on previous MI studies, this paper lays out the contours of America’s state-level overcriminalization problem. Today, state statutory and regulatory codes overflow with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.
The proposed model legislation and executive order in this paper offer a framework for state lawmakers to address the overcriminalization problem. These policies:
Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created.
American law today has a way of making criminals out of ordinary citizens and small business owners:
In 2016, authorities in Oklahoma prosecuted bartender Colin Grizzle for serving vodkas infused with flavors like bacon and pickles. The practice, though popular with patrons, violated Title 37, Chapter 3, Section 584 of the Oklahoma Code.[1]
In 2012, a Minnesota man, Mitch Faber, was jailed for the crime of not finishing the siding on his own house.[2]
In 2011, North Carolina authorities prosecuted Steven Pruner for selling hot dogs from his food cart outside the Duke University Medical Center without a permit. Pruner was sentenced to 45 days of police custody.[3]
Parents today face criminal sanction if they let children run free—as South Carolina mother Debra Harrell discovered in 2014, when she was arrested and lost custody of her nine-year-old child, whom she had allowed to play alone in a park.[4] But parents who drop children off in others’ care can unwittingly place their friends in criminal jeopardy; in 2009, a Michigan woman, Lisa Snyder, was threatened with arrest after it was discovered that she was taking her neighbors’ kids to the school bus stop each morning, which state regulators considered a violation of laws banning unlicensed day care.[5]
In some cases, states have delegated criminal lawmaking authority to unelected regulators and private boards. Such boards have asserted surprisingly sweeping powers. In 2012, the North Carolina Board of Dietetics and Nutrition accused Steve Cooksey of an unlicensed practice of dietetics, a misdemeanor under a catchall provision criminalizing any violation of dietetics or nutrition provisions in the general statutes.[6]
Cooksey’s crime? After battling life-threatening diabetes, he had started an Internet blog, in which he shared his experiences, described how a new diet had helped him overcome his serious condition, and answered questions posed by blog readers.[7] According to the board, the crime extended to ordinary advice exchanged in private e-mails and telephone calls between his friends and readers.[8] Cooksey ultimately prevailed in a First Amendment challenge to the law brought by the litigation nonprofit Institute for Justice;[9] but individuals and business owners without such strong free-speech claims are not afforded a similar ability to get out of jail.
Cooksey’s alleged violation was unknowing—but that offered him little recourse. In most jurisdictions, the fact that someone accused of a crime was engaged in seemingly innocent conduct and had no reason to know that he was breaking the law affords no defense.
In 2007, a Michigan appeals court upheld the conviction of Kenneth Schumacher for the unlawful disposal of scrap tires, which included a sentence of 270 days in jail and a $10,000 fine. Schumacher had not known that the facility where he deposited his tires had seen its permit expire; he believed it to be a legal depository.[10] The court nevertheless determined that Schumacher’s subjective judgment that his delivery was legal did not absolve him of the environmental law’s strict licensing rule.[11] (Michigan has since adopted a law that requires a showing of criminal intent for any crime unless the legislature expressly states otherwise; but it remains a minority rule across the states, including in North Carolina.)
These cases exemplify “overcriminalization,” which describes the rapid growth in the number of criminally enforceable rules and regulations. Overcriminalization particularly refers to crimes for conduct that is not intuitively thought of as criminal.
Overcriminalization in the U.S. has drawn increasing scrutiny by politicians,[12] judges,[13] scholars,[14] and policy analysts.[15] In 2010, coauthor Copland published a book chapter looking at overcriminalization in New York State.[16] Four years later, the Manhattan Institute began to systematically study overcriminalization at the state level, through jurisdiction-specific analyses of quantitative and qualitative trends in state criminal lawmaking. Reports on criminal law in Michigan,[17] Minnesota,[18] North Carolina,[19] Oklahoma,[20] and South Carolina,[21] as well as additional analysis of surrounding states, identified overcriminalization as a serious problem.
Overcriminalization goes beyond the mere presence of too many laws on statute books. Our research has highlighted fundamental deficiencies in how crimes are created and codified. These deficiencies undermine political accountability and erode the structural limits on government action that preserve our freedoms. Overcriminalization is exacerbated by the erosion of traditional intent requirements and other due-process protections in criminal cases.
This paper builds upon the collective findings of our series of state-specific reports and proposes model legislation and executive orders that states can adapt to ameliorate overcriminalization.
Overcriminalizing America
Too Many Crimes
“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
—James Madison, Federalist No. 62
In the Overcriminalizing America series of reports, Manhattan Institute scholars observed bloated criminal codes—sometimes several times larger than the Model Penal Code (Figure 1). (The Model Penal Code is a document drafted by the American Law Institute—an independent group of lawyers, judges, and academics—to “assist legislatures in making a major effort to appraise the content of the penal law by a contemporary reasoned judgment.”)[22]
In comparison with the Model Penal Code’s 114 sections, the criminal codes in Michigan and North Carolina, measured in 2014, had 918 and 765 sections, respectively; those in Minnesota, Oklahoma, and South Carolina, measured in 2016, contained 327, 1,232, and 557 sections, respectively. These state criminal codes varied between 129,000 and 293,000 words. Michigan’s criminal code, for example, uses 266,300 words—taking up 500 pages of 10-point, double-spaced Times New Roman text.
As voluminous as these state criminal codes are, they only begin to scratch the surface in cataloging how many crimes are actually on a state’s books. Many state crimes are codified not in penal codes but in other parts of the broader statutory code, in the vast array of agency-created regulation, and even in private licensing-board rules that have de facto criminal effect through “catchall” statutory delegations of criminal lawmaking power. In each of the five states studied in the Overcriminalizing America series, a majority of new crimes created by statute in the preceding six years were codified outside the criminal code—including 83% of new crimes enacted in Minnesota, 86% of new crimes enacted in South Carolina, and 91% of new crimes enacted in Oklahoma.
During the six-year periods studied, the five states added to their criminal statutes at alarming rates (Figure 2), creating 26–60 new crimes annually—an average of 42 per year. Many of the new crimes created in these jurisdictions were felonies (Figure 3).
The creation of new crimes has hardly slowed down in the years since we released our reports. During the 2015–16 legislative sessions in Michigan,[23] North Carolina,[24] and South Carolina[25], the state legislatures added an average of 37 new crimes to their books.
Outmoded, Silly, and Poorly Written Laws
“We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws.”
—Antonin Scalia, Sykes v. United States, 564 U.S. 1 (2011)
What do some of the crimes populating state statute books look like? Many are duplicative. For example, in 2012, North Carolina enacted a statute criminalizing the theft or vandalizing of portable toilets—acts presumably covered by the state’s general prohibitions on theft and vandalism.[26] The separate codification of acts covered by existing statutes makes the criminal law harder for the average citizen to follow.
Other crimes created during the periods studied border on the ridiculous. Consider a 2011 Oklahoma statute criminalizing the “[f]ailure to leave any gates, doors, fences, road blocks and obstacles or signs in the condition in which they were found, while engaged in the recreational use of the land of another.”[27] Some statutes are so poorly drafted that they remove all objectivity from the process of determining whether a crime was committed. This was the case for a 2012 Minnesota statute prohibiting drug and alcohol abuse counselors from imposing on their clients “any stereotypes of behavior, values, or roles related to human diversity.”[28] What constitutes such a stereotype is left undefined in the statute.
When considering the problems created by ill-considered new additions to the statute books, often overlooked are the problems that stem from old crimes that, while rarely enforced, remain on the books, contributing to the obesity of a state’s body of criminal law. In South Carolina, for example, an old law prohibits, on pain of imprisonment, unlicensed fortune-telling. How one goes about the licensing of fortune-tellers is unclear. A more important question is why such an archaic statute should remain on the books. We have found no example of present-day enforcement of this law.
Other examples include:
Prohibiting the temporary taking of horses or mules (North Carolina)[29]
Prohibiting minors under the age of 18 from playing pinball (South Carolina)[31]
The constant creation of new crimes, coupled with the failure to prune the statute books of old crimes, raises the transaction costs of legal compliance and exacerbates one’s risk of becoming entangled in the ever-growing web of state criminal law.
Counterintuitive Codification
“We concluded that the hunt to say, ‘Here is an exact number of federal crimes,’ is likely to prove futile and inaccurate —James Strazzella, author of the american bar association report “The Federalization of Criminal Law”
Imagine being the proprietor of a small business and wanting to figure out whether something is a criminal offense. Where do you look? Most would answer: “The criminal code.” Yet that would be a risky proposition: newly created crimes are often codified outside state criminal codes, in other chapters of the broader statutory code. Indeed, in all five states that we examined, a majority of the crimes created during the six-year periods studied were codified outside their respective criminal codes: 55% for North Carolina, 73% for Michigan, 83% for Minnesota, 86% for South Carolina, and 91% for Oklahoma (Figure 4).
When crimes are codified outside a state’s criminal code, people who want to stay out of prison must sift through every chapter of the state’s broader statutory code. Parsing through volumes of code with word counts exceeding Tolstoy’s War and Peace is difficult for a trained legal professional, let alone a layman. After such parsing, one would still need to read the broad array of catchall provisions attaching criminal liability to the rules and regulations promulgated by agency officials, government boards, and private licensing bodies.
Erosion of Mens Rea
“Even a dog knows the difference between being kicked, and being stumbled over.”
—Oliver Wendell Holmes, Jr., The Common Law (1888)
The long-standing tradition in Anglo-American legal systems has been that every crime has two elements: (1) it is a bad act (Latin: actus reus); and (2) it is undertaken with a guilty mind (mens rea).[32] The criminal law has also recognized that there are varying levels of culpability. Generally speaking, offenders can act purposefully, knowingly, recklessly, and negligently. These are terms of art whose definitions are not necessary to set out here; but readers should have a sense of the historical backdrop with which they should view current trends in criminal lawmaking.
State lawmakers have often failed to specify any intent requirements in the crimes that have been added to statutory codes in recent years. In Michigan, a study done by the Mackinac Center for Public Policy found that of the 3,102 crimes on state books in 2014, 27% of felonies (321 of 1,209) and 59% of misdemeanors (1,120 of 1,893) contained no mens rea provision.[33]
Many state courts have interpreted statutory silence on criminal intent as the legislature’s intent to create a strict-liability offense (one for which proof of mental culpability is not required). But this is unlikely. Statutory silence on intent in most cases does not reflect a considered decision on the part of legislators to create a strict-liability crime; rather, it is a likely by-product of ad hoc decision making by different statutory drafters. Regardless, inverting the Model Penal Code’s default rule that mens rea is required absent an express statutory command to the contrary leaves citizens at even greater risk: prosecutors would have only to prove that the defendant committed the prohibited act or omission.
Criminalization Without Representation
“Governments are instituted among Men, deriving their just powers from the consent of the governed.”
—Declaration of Independence (1776)
Due to the sweep of the modern regulatory state, legislators regularly delegate details to the executive branch or, in some cases, to private bodies. Statutory catchall provisions make it a crime to violate any of the vast swaths of rules, regulations, and permitting requirements developed outside legislative input or review. We have dubbed this phenomenon “criminalization without representation.”[34]
In North Carolina, for example, statutory catchall provisions make it a crime to violate any rule adopted by various boards, agency commissioners, and secretaries in the areas of public health, agriculture, and environment,[35] as well as private licensing boards in medicine, dentistry, and nutrition.[36] Further, most local ordinance violations in North Carolina are state criminal misdemeanors.[37] None of these catchall provisions contains any criminal-intent standard, despite the fact that much of the prohibited conduct is unlikely to be intuitively criminal.
North Carolina is not unique. Similar statutory catchall provisions delegating state criminal lawmaking power to unelected or local boards, or to single executive branch officials, exist in the other states studied.[38] Such catchall provisions attach criminal penalties to each rule promulgated by a non-legislative individual or board before any rule is actually created. When criminal rules are then promulgated, after the statute in question becomes law, the elected legislature is not required to review or approve the new crimes.
For an example of how criminalization without representation works, consider a 2010 Oklahoma law, the “Pet Breeders Act,” which, in addition to creating criminal penalties for violating the act, criminalized the violation of “any rule [later] adopted under the [Act].”[39] How voluminous were the subsequently promulgated rules? They exceeded 20 pages with more than 43 sections, highlighting just how much the use of regulatory catchalls can inflate a state’s body of criminal laws.[40]
Fixing the Overcriminalization of America
This report paints an unflattering picture of state criminal law. But there is some light shining through the clouds. Some state legislatures have adopted measures to stem the tide of overcriminalization. The five reforms proposed below—and the accompanying model legislation and executive orders—would build upon these recent legislative successes.
Restore Criminal Intent
One way to protect well-meaning citizens against prosecution for crimes that they unknowingly commit is to ensure that prosecutors meet the same burden of proof for both of the traditional elements of a crime. That is, the government should have to prove criminal intent in prosecuting alleged regulatory offenses—which are not intuitively criminal in nature—just as it is required to do in cases involving more serious offenses.
Fifteen states have adopted default criminal-intent statutes that establish a baseline level of intent that prosecutors must establish to secure a conviction.[41] These default provisions are typically triggered when the criminal statute or regulation in question is silent as to criminal intent.
Unfortunately, even states that have adopted these mens rea rules have sometimes omitted crimes that ordinary citizens are likely to find the least intuitively criminal. For example, Kansas’s default criminal-intent statute applies only to offenses in the state’s criminal code, despite the fact that the criminal code is likely to contain only a minority of the state’s statutory crimes. Kansas and other states should therefore expand their default criminal-intent statutes to apply to offenses listed throughout their entire statutory code.
While including an intent requirement in all criminal statutes may be good policy, legislators may wish to retain the power to create strict-liability offenses in certain cases. Default mens rea laws, such as our proposed model legislation, would not prohibit lawmakers from doing so. Instead, a default criminal-intent statute simply prohibits courts from interpreting statutory silence on criminal intent as the legislature’s desire to create a strict-liability offense. Once such a default is adopted, lawmakers who wish to create a strict-liability offense would have to do so explicitly in the statutory language.
AN ACT TO REESTABLISH MENTAL CULPABILITY AS AN ESSENTIAL ELEMENT OF A CRIMINAL OFFENSE
Sec. 1
1. Except as otherwise provided in this section, a person is not guilty of a criminal offense for which incarceration is statutorily a potential punishment, committed on or after the date of the passage of this Act by both legislative chambers, unless both of the following apply: A. The person’s criminal liability is based on conduct that includes either a voluntary act or an omission to perform an act or duty that the person is capable of performing. B. The person has the requisite degree of culpability for each element of the offense as to which a culpable mental state is specified by the language defining the offense. 2. If the statutory language setting out the elements of a criminal offense explicitly imposes strict criminal liability for the conduct described in the statute, then mental culpability is not required for a person to be guilty of the offense. 3. If a subsection of a statute plainly imposes strict criminal liability for an offense defined in that subsection but does not plainly impose strict criminal liability for an offense defined in another subsection, the offense defined in the subsection without a plain imposition of strict criminal liability should not be inferred to be a strict-liability crime. 4. Statutory silence as to mental culpability (mens rea) with respect to an offense or element of an offense shall not be construed as the legislature’s intent to impose strict criminal liability for any offenses set out therein. 5. If statutory language defining an element of a criminal offense that is related to knowledge or intent or as to which mens rea could reasonably be applied neither specifies mental culpability nor plainly imposes strict liability, the element of the offense is established only if a person acts with intent, or knowledge. A. “Intent” means a desire or will to act with respect to a material element of an offense if both of the following circumstances exist: i. The element involves the nature of a person’s conduct or a result of that conduct, and it is the person’s conscious object to engage in conduct of that nature or to cause that result. ii. The element involves the attendant circumstances, and the person is aware of the existence of those circumstances or believes or hopes that they exist. B. “Knowledge” means awareness or understanding with respect to a material element of an offense if both of the following circumstances exist: i. The element involves the nature or the attendant circumstances of the person’s conduct, and the person is aware that his or her conduct is of that nature or that those circumstances exist. ii. The element involves a result of the person’s conduct, and the person is aware that it is practically certain that his or her conduct will cause that result.
Sec. 2
1. Nothing in this Act shall be construed to alter the state of the law with respect to the legal effect or lack thereof on criminal liability of the voluntary consumption of a substance or compound one knows or reasonably should know may lead to intoxication or impairment.
Expand the Mistake-of-Law Defense
The “mistake-of-law” defense is a legal mechanism through which a defendant who committed a prohibited act can argue that he nevertheless acted in good faith. If successfully invoked, a mistake-of-law defense can rebut the presumption that a defendant knew and understood the law.
Mistake of law is an affirmative defense, i.e., a criminal defendant must advance it to negate legal liability. The defense requires a defendant to establish that he:
(1) erroneously conclude[d] in good faith that his particular conduct [was] not subject to the operation of the criminal law; (2) ma[de] a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded or [sic] under our legal system, to ascertain and abide by the law; [and] (3) act[ed] in good faith reliance upon the results of such effort.[42]
The defendant must also show that “the conduct constituting the offense is neither immoral nor anti-social.”[43]
Traditionally, a mistake-of-law defense has been viable only in limited circumstances: when the law in question had not yet been published; when the defendant relied on an official interpretation of the law by a prosecutor or other applicable official; or when the defendant relied on a subsequently overruled judicial opinion. The proposed model legislation would expand the applicability of the defense. If a defendant “erroneously concludes in good faith” that his conduct is not illegal, the model legislation would allow him to present a mistake-of-law defense to a jury—even if the law in question was already published or he was not relying on a judicial opinion or an official interpretation from a government official.
This sort of expansion would offer well-meaning citizens an important layer of protection against criminal liability for acts committed despite having made a good-faith effort to comply with the law—so long as they could convince a jury of their good faith. The model mistake-of-law defense would not apply to cases involving violence, property destruction, or the possession or distribution of narcotics, thereby minimizing the possibility that the policy would harm public safety.
AN ACT TO ESTABLISH THE CONTOURS AND APPLICABILITY OF THE AFFIRMATIVE DEFENSE OF “MISTAKE OF LAW” IN CRIMINAL CASES
SEC. 1 | “MISTAKE OF LAW” DEFINED
“Mistake of Law” is an affirmative defense[44] that, if proven by a preponderance of the evidence, negates the criminal-intent element of a specific-intent crime.
SEC. 2 | ELEMENTS OF THE DEFENSE
The mistake-of-law defense is a cognizable defense when all of the following elements are established: 1. charges are brought in criminal court; 2. the statutory or regulatory offense(s) in question are not strict-liability offenses, and the state is required to establish criminal intent beyond that to merely perform the act or omission constituting the offense; 3. the defendant erroneously concludes in good faith that his particular conduct is not subject to the operation of criminal law; 4. the defendant makes a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded under our legal system, to ascertain and abide by the law; and A. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, appropriate means are not limited to reliance on official interpretations or judicial decisions, consultation with a licensed attorney, and, where the offense alleged was committed in a business setting, seeking the advice of internal compliance professionals; B. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, enactment and publication of a law or regulation shall not be deemed to negate a mistake of law defense as a matter of law; 5. the defendant acts in good-faith reliance upon the results of such effort.
Recodify the Criminal Law
In North Carolina, lawmakers introduced a bill to establish a “recodification task force.” When the proposed legislation stalled, stakeholders from public-policy organizations and the North Carolina government formed an informal working group that took on the tasks outlined in the proposed legislation. The group has since been formally recognized by the state’s legislature, which passed a bill to deliver to the group requested data and other information.[45]
A recodification task force would reorganize a state’s criminal law into a single, comprehensive code of all criminal offenses. Providing a single source in which all criminal offenses are set out would lower the risk that ordinary citizens acting in good faith unknowingly commit a criminal offense, as well as (likely) improve compliance with the criminal law.
The task force would be free to make recommendations to exclude or include various provisions in the comprehensive code being proposed—consistent with the goal of lowering the transaction costs associated with legal compliance. The comprehensive code proposed by the task force could be amended by, and adopted in whole or in part by, the legislature.
AN ACT TO ESTABLISH THE [STATE NAME] CRIMINAL CODE RECODIFICATION COMMISSION
SEC. 1 | COMMISSION ESTABLISHED
There is established the Criminal Code Recodification Commission (hereinafter “[the] Commission”) within the [state name] Judicial Department’s Office of Court Administration {or equivalent}. SEC. 2 | COMPOSITION
The Commission shall be composed of twenty-one members to be appointed as follows {note: composition may vary based on state constitutional structure, statutory schemes, or political realities}: 1. Four members of the Senate appointed by the President Pro Tempore of the Senate. At least one Senate member must be a member of the minority party at the time of the Commission’s creation. A. Senate members may designate a member of their staff to represent them at meetings of the Commission, but the ability to vote on any matters before the Commission shall be reserved to appointed members. 2. Four members of the House of Representatives appointed by the Speaker of the House of Representatives. At least one House member must be a member of the minority party at the time of the Commission’s creation. A. House members may designate a member of their staff to represent them at meetings of the Commission, but the ability to vote on any matters before the Commission shall be reserved to appointed members. 3. Two members appointed by the Governor. 4. The Lieutenant Governor, or the Lieutenant Governor’s designee, and one additional member appointed by the Lieutenant Governor. 5. Two sitting sheriffs or police department chiefs, of which one shall be appointed by the President Pro Tempore of the Senate, and the other appointed by the Speaker of the House. 6. Seven members appointed by the Chief Justice of the [state name] Supreme Court as follows: A. A sitting superior court judge B. A sitting intermediate appellate court judge C. Two state penitentiary wardens D. A sitting district attorney E. A sitting public defender F. A member of the private criminal defense bar 7. The Chair of the Commission will be selected by the Governor from among the appointed members.
SEC. 3 | DELIVERABLES OF THE COMMISSION The Commission shall produce the following:
1. Within eighteen months from the effective date of this Act, a fully drafted, new, streamlined, comprehensive, orderly, and principled criminal code. 2. Official commentary appended to the new code explaining how it will operate. Said commentary shall identify, explain, and provide justification for changes in current law. 3. An offense grading table appended to the new code grouping all offenses covered by the new code by offense grade. Offenses shall be graded within existing sentencing classes.
SEC. 4 | MANDATE OF THE COMMISSION
In producing deliverables outlined in Sec.’s 3(1)–(3), the Commission shall:
1. Incorporate into the new code all major criminal offenses contained in existing law that the Commission has not chosen to exclude. 2. Include necessary provisions not contained in the current code, such as default mental state requirements as an essential element of criminal liability, a listing of affirmative defenses and their elements, and definitions of offenses and key terminology with corresponding citations to governing precedent when applicable or deemed helpful by the Commission. 3. Exclude from the new code unnecessary, duplicative, inconsistent, or unlawful provisions of current law. Note in commentary whether criminally enforceable provisions of current law that have been excluded from the code should remain available for civil enforcement through the levying of fines, or repealed altogether. 4. Use language and syntactical structure to make the law easier to understand and apply. 5. Ensure that criminal offenses are cohesive, rational, and consistent with one another. 6. Make recommendations regarding whether, and if so, what, limitations should be placed on the ability of administrative boards, agencies, local governments, appointed commissioners, or of other persons or entities to enact rules that will, pursuant to the enabling statute, be eligible for criminal enforcement. 7. Address any other matter deemed necessary by the Commission to carry out its legislative mandate.
Repeal Outmoded, Unnecessary, and Unconstitutional Criminal Laws
Some states have undertaken legislative efforts to clean up their statute books by repealing unnecessary, outmoded, and duplicative criminal offenses. In Kansas, for example, the state established an “Office of the Repealer” in 2011. The primary aim of the office was to review the body of criminal law and continuously flag provisions ripe for repeal, which the legislature could then choose to act upon.[46] In Michigan, Governor Rick Snyder signed, in 2015, a bill repealing a number of outmoded crimes[47]—the legislature’s response to the governor’s call for such reforms earlier that year.[48]
While these efforts are laudable, they do not go far enough, considering the rate at which lawmakers are adding new criminal offenses to the books. One state studied by the Manhattan Institute, however, does offer a fine example of how to undertake a large-scale repeal effort. In 2014, Minnesota’s legislators repealed more than 1,175 crimes in what was dubbed the legislative “unsession.”[49] The unsession was the outgrowth of a push by Governor Mark Dayton to prune unnecessary and outmoded laws piling up on state books.[50]
Dayton persuaded lawmakers to take up a long list of crowd-sourced reform proposals during its short even-year legislative session.[51] States wishing to address overcriminalization should consider using Minnesota’s approach. In addition, states should consider appointing a task force to offer recommendations, which could focus and refine crowd-sourced proposals, as well as facilitate bipartisanship.
The proposed model legislation would not create or mandate a legislative “unsession”—traditional notions of the separation of powers argue against having the executive branch of a state government set the agenda for the legislative branch. Instead, we suggest two mechanisms, legislative resolution and executive order, through which states could create an overcriminalization task force. Such a task force would be charged with reviewing the criminal law with an eye toward identifying provisions ripe for repeal. The legislature could then consider the suggestions of the task force, ideally during a special legislative “unsession.”
A JOINT RESOLUTION TO CREATE THE [STATE NAME] OVERCRIMINALIZATION TASK FORCE, TO PROVIDE FOR THE COMPOSITION OF THE TASK FORCE, AND TO PROVIDE THAT THE TASK FORCE SHALL REPORT ITS FINDINGS TO THE GENERAL ASSEMBLY
Whereas, overcriminalization, defined as the growth of criminal statutes within a state’s code of laws, exists as a phenomenon within the state of ______________; and Whereas, it is in the public interest for the State to establish a ________________ Overcriminalization Task Force to study the presence of the criminal law and how the entirety of the criminal law and state policies affect this population. Now, therefore, Be it enacted by the General Assembly of the State of __________________:
1. There is hereby established the [State Name] Overcriminalization Task Force (hereinafter “task force”) to study and review the scope and application of the criminal law and to examine how the criminal law affects the population of this state. 2. The task force shall consist of thirteen members, composed as follows: A. the Director of the [State Name] Department of Corrections, or his designee, shall serve ex officio and shall be the chairman of the task force; B. twelve members who shall be appointed as follows: i. Six members shall be appointed by the President Pro Tempore of the Senate. Two shall be members of the Senate, at least one of whom shall be a member of the majority political party represented in the General Assembly and at least one of whom shall be a member of the largest minority political party represented in the General Assembly. One shall be a member of the public at large; and ii. Six members shall be appointed by the Speaker of the General Assembly. Two shall be members of the House of Representatives, at least one of whom shall be a member of the majority political party represented in the General Assembly and at least one of whom shall be a member of the largest minority political party represented in the General Assembly. One shall be a member of the public at large; and 3. the task force shall organize as soon as practicable following the appointment of its members and shall select a vice chairperson from among its members. 4. The members of the task force shall be appointed no later than thirty days after the effective date of this act. 5. Vacancies in the membership of the task force shall be filled in the same manner provided by the original appointments. 6. The members shall serve without compensation and may not receive mileage or per diem. The task force may meet and hold hearings at the places it designates during the sessions or recesses of the legislature; and, wherever practicable, the General Assembly shall make meeting space available to the task force upon request. 7. The findings and recommendations of the task force shall be reported to the Governor and the General Assembly no later than twelve months after the initial meeting of the task force. The report shall principally identify the laws the task force recommends to the General Assembly for repeal.
8. The task force shall dissolve immediately after submitting its report to the Governor and the General Assembly.
DRAFT OF EXECUTIVE ORDER ESTABLISHING GOVERNOR’S OVERCRIMINALIZATION TASK FORCE
State of _______________ Executive Department Office of the Governor Executive Order No. 20XX-XX Whereas, overcriminalization, defined as the growth of criminal statutes within a state’s code of laws, exists as a phenomena within the state of ____________________; and Whereas, it is in the public interest for the State to establish a ____________________ Overcriminalization Task Force to study the presence of the criminal law and how the entirety of the criminal law and state policies affect this population. Now, therefore, pursuant to the authority vested in me by the Constitution and Statutes of the State of __________________, I hereby establish the Governor’s Overcriminalization Task Force (“Task Force”) to be composed of ______________ members to include _____________________, appointees from the majority and minority leaders of the Senate and House of Representatives, and representatives from different business sectors and the conservation community, of which I shall designate the chairperson. I hereby direct the Task Force as follows:
SEC. 1 | TASK FORCE DIRECTIVES
1. Task Force Mission: To study and review the body of criminally enforceable rules and regulations and submit a report to the General Assembly identifying those criminal laws and regulations it recommends for repeal.
2. Duties and responsibilities:
A. The Task Force shall evaluate the reports submitted by agencies, pursuant to Section II, that identify current and proposed statutes, rules, regulations, and policies that add new crimes or criminally-enforceable provisions to ________ laws, rules, and regulations. B. The Task Force shall cooperate and coordinate with the appropriate state agencies, as practicable, to identify current and proposed crimes or criminally-enforceable provisions in state laws, rules, and regulations.
C. The Task Force shall conduct public hearings and solicit input from businesses, employers, conservation groups, professional associations, state agencies, and other interested persons and groups to develop its final report. As practicable, the Task Force shall conduct public hearings in local communities around the State.
D. Staff will be designated to assist the Task Force in developing its report. E. The Task Force shall submit its final report on or before ________ XX, 20XX, to the Governor and the members of the General Assembly. FURTHER, I hereby direct all Cabinet agencies and encourage all other executive agencies as follows:
SEC. 2 | AGENCY DIRECTIVES
1. Each agency shall identify its current and proposed statues, rules, regulations, and policies that expand the existing quantity of criminal laws in ________ using the following guidelines:
A. Each agency shall comprehensively review all current and proposed statutes, rules, regulations, and policies in order to assess their effects on the criminal law of ________ to determine whether they are exceedingly vague, duplicitous, antiquated, enforced, proportional to their punishments, and contain reasonable culpability requirements.
B. In evaluating statutes, rules, regulations, and policies, each agency should consider factors to include, but not limited to, their necessity, complexity, efficiency, effectiveness, redundancy, public complaints or comments, short- and long-term effects, impact on all affected persons, both intended and unintended, and unintended negative consequences.
2. Each agency shall submit a written report to the Task Force on or before _____ XX, 20XX, providing detailed recommendations to repeal or amend any provisions that unduly burden businesses and citizens of this State.
3. Each agency is authorized to call upon any department, office, division, or agency of this State to supply it with data and other information, personnel, or assistance it deems necessary to discharge its duties under this Order. Each department, officer, division, or agency of the State is hereby required, to the extent not inconsistent with law, to cooperate with another agency and to furnish it with such information, personnel, and assistance as is necessary to accomplish the purpose of this Order.
4. Each agency shall take care to solicit both written and oral comments from the public, including businesses, employees, professional associations, conservation organizations, and other affected persons or entities as the agency deems appropriate and to consider the views expressed by those parties in any report.
This Order is effective immediately.
GIVEN UNDER MY HAND AND THE GREAT SEAL OF THE STATE OF [STATE NAME], THIS xx DAY OF ____________ 20XX.
Eliminate Criminalization without Representation
In every state studied in the Manhattan Institute’s Overcriminalizing America series, lawmakers have delegated effective criminal lawmaking authority to, among others, executive-branch officials, commissions, and private licensing boards. Such delegation makes legal compliance even more complicated for ordinary citizens.
Moreover, each state that we have examined has a large number of crimes that were never voted on, or even reviewed, by anyone who must answer to voters. Criminalization without representation concentrates power in the hands of unelected officials, undermining political accountability. It also threatens to accelerate the rate of new crime creation.
The proposed model legislation aims to constrain regulators’ power to create crimes without express approval by the legislative branch. The model policy would restrict regulations to the realm of civil enforcement unless and until those regulations survive votes in both chambers of a state’s legislature and are approved by the state’s governor—i.e., unless and until those regulations survive the strictures of bicameralism and presentment.
AN ACT TO END “CRIMINALIZATION WITHOUT REPRESENTATION”
SEC. 1 | DEFINITIONS
1. Regulatory “catchall” provision—A provision in legislation that prescribes penalties (specifically criminal penalties, for the purposes of this legislation) for the violation of a rule, or rules, a regulatory body is authorized to promulgate, prior to the promulgation of such rules. 2. Regulatory body—Any governmental agency, quasi-private body, commissioner, or other official, vested with the authority to promulgate regulations of any sort enforceable by the state of _______________.
3. Rule or regulation—Any prohibition or requirement articulated by a regulatory body and enforceable either civilly or criminally by the state of ______________. 4. Criminal enforcement—Any enforcement action brought by the state for which the target of the enforcement action, if found guilty, can be imprisoned, labeled as a felon or misdemeanant under state law, fined more than $10,000, or prohibited from exercising state or federal constitutional rights, including the rights to vote, keep and bear arms, and deny a law enforcement officer’s request to conduct a search pursuant to the Fourth Amendment to the Constitution of the United States.
5. Rules eligible for criminal enforcement—Any rule promulgated pursuant to a grant of legislative authority that contains a “regulatory catchall” provision by which the rule is covered.
SEC. 2 | BICAMERALISM AND PRESENTMENT REQUIRED
1. As of the effective date of this legislation, no rule or regulation covered by a “regulatory catchall” provision, except those that satisfy the requirements set out in
(2, below) may be criminally enforced. 2. A rule or regulation may be criminally enforced if and only if it has been approved—in the form of a joint resolution subject to an up and down vote—by a simple majority of both houses of the _____________ state legislature, and that resolution has been signed by the Governor. 3. Promulgated rules eligible for criminal enforcement
that have not satisfied the requirements set out in
(2, above) will be restricted to civil enforcement unless and until said requirements are satisfied.
4. If no civil enforcement penalties are set out in the legislation authorizing a promulgated rule eligible for criminal enforcement, the penalties for the violation of said rule are as follows—
A. Upon a finding of guilt by a preponderance of the evidence, a fine not exceeding $150 per violation may be levied. B. Failure to pay any fines levied pursuant to (A, above) can result in additional fines, a finding of contempt of court, or the suspension of a state license related to the offense charged held by the accused.
Conclusion
Building on the Manhattan Institute’s previous findings, this paper lays out the contours of the state-level overcriminalization problem. State statutory and regulatory codes are overflowing with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.
The proposed model legislation and executive order offer a framework for state lawmakers to address the overcriminalization problem. These policies:
Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created
Across the states we have studied, the criminal law tends not to reflect due consideration of whether particular disfavored conduct should be criminalized, rather than dealt with through civil or administrative means; whether it is bad enough to dispense with the long-standing principle that a criminal act requires acting with a guilty mind; and whether the punishment for a given crime fits with parallel offenses, criminal and civil. Such questions can be difficult to answer, especially for the many part-time legislators across the states, constrained by time and resources, and often lacking legal training.
The reforms suggested in this paper implicitly recognize such difficulty—offering protections to criminal defendants acting in good faith, delegating recodification and repeal to focused task forces—while also restoring to the legislature the proper ultimate authority over a government’s awesome power to take away a citizen’s liberty.
Each state is different. Some states have more work to do than others. But we are confident that each state needs reform. It is up to elected state leaders to meet that need with action.
Endnotes
Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds, 2017 Annual Report, July 13, 2017.
“Implementing MACRA,” Health Affairs Policy Brief, Mar. 27, 2017.
Office of Inspector General, U.S. Department of Health & Human Services, “Medicare Hospital Prospective Payment System: How DRG Rates Are Calculated and Updated,” OEI-09-00-00200, Aug. 2001.
Ibid.
Centers for Medicare & Medicaid Services (CMS), “National Health Expenditures.”
Charles Roehrig, “A Brief History of Health Spending Since 1965,” Health Affairs blog, Sept. 19, 2011.
American Medical Association, “RBRVS Overview.”
Congressional Budget Office (CBO), “Factors Underlying the Growth in Medicare’s Spending for Physicians’ Services,” Background Paper #2597, June 2007.
Zirui Song et al., “Medicare Fee Cuts and Cardiologist-Hospital Integration,” JAMA Internal Medicine 175, no. 7 (July 2015): 1229–31.
Medicare Payment Advisory Commission (MedPAC), Report to Congress, “Physician and Other Health Professional Services,” Mar. 2017.
“Implementing MACRA.”
Medicare Access and CHIP Reauthorization Act of 2015, Public Law 114-10.
Institute of Medicine, “Crossing the Quality Chasm: A New Health System for the 21st Century,” Mar. 2001.
Chris Pope, “Medicare’s Single-Payer Experience,” National Affairs, no. 26 (Winter 2016): 2–20.
Kathryn Toone, Natalie Burton, and David Muhlestein, “MACRA in 2017: Overview, Impact & Strategic Considerations of the Quality Payment Program,” Leavitt Partners, Mar. 2017.
Ben Sasse, “House Should Reject Medicare Change,” Politico, Mar. 26, 2015.
CMS, “Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician Focused Payment Models,” Final Rule with comment period, Federal Register 81, no. 214 (Nov. 4, 2016): 77008–831.
CMS, “Medicare Program; CY 2018 Updates to the Quality Payment Program,” Proposed Rule, Federal Register 82, no. 125 (June 30, 2017): 30010–500.
Tim Gronniger et al., “How Should the Trump Administration Handle Medicare’s New Bundled Payment Programs?” Health Affairs blog, Apr. 10, 2017.
Toone, Burton, and Muhlestein, “MACRA in 2017.”
CMS, “The Quality Payment Program.”
MedPAC, Report to Congress, “Physician and Other Health Professional Services,” Mar. 2017.
CMS, “The Merit-Based Incentive Payment System: MIPS Scoring Methodology Overview.”
MedPAC, Report to Congress, “Medicare and the Health Care Delivery System,” June 2017.
MedPAC, “Physician and Other Health Professional Services.”
Eric T. Roberts, Alan M. Zaslavsky, and Michael McWilliams, “The Value-Based Payment Modifier: Program Outcomes and Implications for Disparities,” Annals of Internal Medicine 168, no. 4 (Nov. 28, 2017): 255-65.
See the transcript of the MedPAC public meeting, Oct. 5, 2017, pp. 4, 9; Virgil Dickson, “MedPAC Urges Repealing MIPS,” Modern Healthcare, Oct. 5, 2017.
Kate Bloniarz and David Glass, “Next Steps for the Merit-based Incentive Payment System (MIPS),” MedPAC public report, Oct. 5, 2017.
See the letter from Glenn M. Hackbarth, chairman of MedPAC, to Marilyn Tavenner, administrator, Centers for Medicare & Medicaid Services, “RE: CMS List of Measures Under Consideration for December 1, 2014,” Jan. 5, 2015.
See the transcript of the MedPAC public meeting, Oct. 5, 2017, p. 7.
Niam Yaraghi, “MACRA Proposed Rule Creates More Problems than It Solves,” Health Affairs blog, Oct. 16, 2016.
U.S. Government Accountability Office, “HHS Should Set Priorities and Comprehensively Plan Its Efforts to Better Align Health Quality Measures,” Report to Congressional Committees, GAO-17-5, Oct. 2016.
Robert A. Berenson, “If You Can’t Measure Performance, Can You Improve It?” Journal of the American Medical Association 315, no. 7 (Feb. 16, 2016): 645–46.
Yaraghi, “MACRA Proposed Rule.”
J. Michael McWilliams, “MACRA: Big Fix or Big Problem?” Annals of Internal Medicine 167, no. 2 (July 18, 2017): 122–24.
Roberts, Zaslavsky, and McWilliams, “The Value-Based Payment Modifier.”
Lynn Bar, Tim Gronniger, and Tim Putnam, “CMS’s Big MACRA Surprise—Physicians Will Be Judged Based on Cost in 2018 MIPS Calculation,” Health Affairs blog, Nov. 22, 2017.
Krista Teske, “Your Questions About the 2017 MACRA Final Rule—Answered,” Advisory Board Expert Insight, Jan. 31, 2017.
Bloniarz and Glass, “Next Steps for the Merit-Based Incentive Payment System (MIPS).”
Lawrence P. Casalino et al., “US Physician Practices Spend More than $15.4 Billion Annually to Report Quality Measures,” Health Affairs 35, no. 3 (Mar. 2016): 401–6.
“Table 64: MIPS Proposed Rule Estimate Impact on Total Allowed Charges by Practice Size,” Federal Register 81, no. 89 (May 9, 2016): 28375.
See the transcript of the Med PAC public meeting, Oct. 5, 2017.
Kate Bloniarz and David Glass, “Approaches to MACRA implementation: Balancing MIPS and A-APMs,” MedPAC presentation, Jan. 12, 2017.
Toone, Burton, and Muhlestein, “MACRA in 2017.”
Tara O’Neill Hayes, “Primer: MACRA and Advanced Alternative Payment Models,” American Action Forum, Mar. 30, 2017.
CMS, “Physicians and Health Care Providers Continue to Improve Quality of Care, Lower Costs,” Aug. 25, 2016.
“MACRA: Disrupting the Health Care System at Every Level,” Deloitte Health Policy Brief, 2016.
Maria Castellucci, “CMS Loses Money as Medicare ACOs Remain Risk-Averse,” Modern Healthcare, Nov. 3, 2017.
Ashish Jha, “ACO Winners and Losers: A Quick Take,” An Ounce of Evidence blog, Aug. 30, 2016.
Kristen Barlow, “3 Mandatory Bundles Will Likely Be Canceled, a 4th Scaled Back: What You Need to Know,” Advisory Board at the Helm, Aug. 16, 2017.
François de Brantes, “Medicare’s Bundled Payment Programs Suffer from Fatal Flaws, but There Is a Logical Alternative,” Health Affairs blog, May 9, 2017.
J. Michael McWilliams et al., “Outpatient Care Patterns and Organizational Accountability in Medicare,” JAMA Internal Medicine 174, no. 6 (June 2014): 938–45.
Yena Son and Daniel Kuzmanovich, “Concerned About MACRA? You’re Not the Only One,” Advisory Board Practice Notes, Dec. 8, 2016.
John O’Shea, “Salvaging MACRA Implementation Through Medicare Advantage,” Health Affairs blog, Oct. 16, 2017.
Idem, “As MACRA Implementation Proceeds, Changes Are Needed,” Health Affairs blog, Apr. 21, 2017.
De Brantes, “Medicare’s Bundled Payment Programs Suffer from Fatal Flaws.”
“Physicians Wary of MACRA’s Potential to Hasten the Demise of Independent Practices, per Black Book Survey,” PR Newswire, June 13, 2016.
“2016 Survey of America’s Physicians,” Physicians Foundation, Sept. 21, 2016.
Molly Gamble, “Sebelius: PPACA, Antitrust Law in ‘Constant Tension,’ ” Becker’s Hospital Review, Apr. 9, 2013.
Scott Gottlieb, “House Republicans Should Break the Obamacare Mold on Doctor Pay,” Forbes, Mar. 19, 2015.
Hannah T. Neprash, Michael E. Chernew, and J. Michael McWilliams, “Little Evidence Exists to Support the Expectation That Providers Would Consolidate to Enter New Payment Models,” Health Affairs 36, no. 22 (Feb. 2017): 346-54.
“CMS to Count Participation in MA Towards Alternative Pay Model Calculations,” Inside Health Policy, Nov. 8, 2017.
Katherine Baicker, Michael E. Chernew, and Jacob E. Robbins, “The Spillover Effects of Medicare Managed Care: Medicare Advantage and Hospital Utilization,” Journal of Health Economics 32, no. 6 (Dec. 2013): 1289–1300; Katherine Baicker and Jacob A. Robbins, “Medicare Payments and System-Level Health-Care Use: The Spillover Effects of Medicare Managed Care,” American Journal of Health Economics 1, no. 4 (Fall 2015): 399–431.
Originally published at The Daily Signal by Jonathan Zalewski | 7/27/18
Have your kids ever asked you if they could set up a lemonade stand in the neighborhood? If so, don’t be so quick to give permission—it could be conspiracy to commit a crime.
Across America, parents and children are learning that the hard way. From Louisiana to Colorado, families set up makeshift lemonade stands, hoping to teach children the virtues of capitalism, make a few bucks, or raise funds for charity. Then they find themselves in trouble with the law if they do not first obtain a government license to conduct their “food-vending business.”
These stories reflect the way our society has become overcriminalized through the overuse and abuse of the criminal law to fix every problem and punish every mistake.
They also reveal how crony capitalism and government bureaucracy are destroying free markets, innovation, and entrepreneurialism in our local neighborhoods.
In Denver, for example, the city’s laws and regulations require any food vendor operating a vending cart in or within 300 feet of a Denver park to obtain a temporary food-vending permit before selling any food or non-alcoholic beverage to the public.
Food vendors who do not obtain a permit or violate any other provision of Denver law governing the operation of food-vending carts face up to a $999 fine, 300 days in jail, or both, for each violation of the law.
These laws and regulations even apply to lemonade stands—which brings us to the story of Jennifer Knowles and her three young sons.
Over Memorial Day weekend this year, Knowles helped her sons set up a lemonade stand across the street, within 300 feet, from an arts festival in a Denver park.
But, according to police, vendors from the art festival called and complained that the boys were undercutting the vendors’ prices and lacked a permit. Since Knowles and her boys did not have a permit to operate the stand within 300 feet of the park, police shut it down.
Neither Knowles nor her sons were criminally charged, but the boys were embarrassed and scared when the police made them close the stand. One began to cry, and another said, “I put my hat over my face. I didn’t want to see anyone.”
Clearly, Knowles and her family meant no harm to either the city or the festival vendors. In fact, they set up the lemonade stand to raise money for a charity that helps children in poverty.
Perhaps the old adage is true: No good deed goes unpunished.
If so, we need to ask ourselves what we are teaching our children about civic virtues.
The Denver laws and regulations that got Knowles and her sons into trouble present a classic case of overcriminalization. A perfectly innocent economic activity—selling lemonade to people in the neighborhood to raise money to help others in need—becomes the basis for a criminal law and punishment, including a potential jail sentence.
When the police showed up to Knowles’ house that day, they indeed could have arrested her for allowing her sons to run the stand without a permit.
The thought of that should concern every American.
Some may say obtaining a food-vending license serves a legitimate public interest by protecting consumers from foodborne illnesses. But is that what happened over Memorial Day weekend in Denver?
Police said they closed the Knowles’ lemonade stand because vendors were complaining the boys were undercutting their prices. It had nothing to do with whether Knowles and her sons were operating an unsanitary lemonade stand.
Food-vending licenses, like other types of occupational licenses, offer individuals and businesses protection from competition, which destroys free markets and innovation. Licensing laws incentivize individuals and businesses, such as food vendors, to seek and lobby for government intervention—at little or no cost—to obtain economic benefits at the expense of others.
The story of Knowles and her three sons illustrates how government licensing promotes crony capitalism, which—in addition to overcriminalization—creates economic barriers for people who are often economically or politically disadvantaged.
Their story also illustrates how children can become fearful of the law and uninterested in entrepreneurship and philanthropy.
But Knowles and her sons are not letting these barriers stop them.
Since their lemonade stand was shut down, Knowles and her sons have continued their philanthropic efforts and partnered with a local Chick-fil-A store to sell lemonade in the store for a day to raise additional money for charity.
Knowles is also working with the city of Denver to devise a solution that would allow young children to operate a lemonade stand without committing a crime.
For Knowles and her sons, when life gives them lemons, they truly do make lemonade.
Originally published at Cato Institute by Jay Schweikert | April 25, 2018
Cases: Randy Johnson v. US, Whren v. US
The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Such broad discretion enabled abusive, selective enforcement, and the colonists’ contempt for those arbitrary practices was a major cause for the Revolutionary War itself. But 227 years after ratification of the Fourth Amendment, we are tragically approaching a stealth resurrection of the general warrant, in the form of pretextual stops. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that the actual intent of law enforcement officers in making a stop—even unlawful intent, like racial discrimination—is irrelevant to the legality of a traffic stop under the Fourth Amendment, so long as there is probable cause to believe that some traffic violation occurred. The practical effect of this decision has been to give police officers nearly unfettered discretion to stop any person they choose at any time. After all, no one can actually operate a motor vehicle for an extended period of time without running afoul of some traffic law. Especially when combined with other areas of Fourth Amendment law that create expansive exceptions to the warrant requirement, Whren itself has already been described as the “twentieth‐century version of the general warrant.” But if that were not bad enough, the Seventh Circuit, in an en banc decision, recently extended the Whren doctrine even to parking violations—and effectively, to any and all fine‐only offenses, no matter how trivial. Especially in light of the rampant state of overcriminalization in our country today, that move represents an endorsement of the general warrant in all but name. We have so many criminal laws today that we cannot even count them all, and states routinely regulate a huge swath of generally harmless conduct that regular citizens engage in every day. If violation of any regulation whatsoever is sufficient to justify a police stop (regardless of whether that regulation was actually the motive behind the stop), then police can, in effect, stop anyone they want to. The Cato Institute has therefore filed an amicus brief urging the Supreme Court to grant cert in this case, reverse the Seventh Circuit, and reconsider the Whren doctrine entirely.
Originally published at Cato Institute by Jay Schweikert | April 25, 2018
Cases: Black v. US, Weyhrauch v. US
The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Such broad discretion enabled abusive, selective enforcement, and the colonists’ contempt for those arbitrary practices was a major cause for the Revolutionary War itself. But 227 years after ratification of the Fourth Amendment, we are tragically approaching a stealth resurrection of the general warrant, in the form of pretextual stops. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that the actual intent of law enforcement officers in making a stop—even unlawful intent, like racial discrimination—is irrelevant to the legality of a traffic stop under the Fourth Amendment, so long as there is probable cause to believe that some traffic violation occurred. The practical effect of this decision has been to give police officers nearly unfettered discretion to stop any person they choose at any time. After all, no one can actually operate a motor vehicle for an extended period of time without running afoul of some traffic law. Especially when combined with other areas of Fourth Amendment law that create expansive exceptions to the warrant requirement, Whren itself has already been described as the “twentieth‐century version of the general warrant.” But if that were not bad enough, the Seventh Circuit, in an en banc decision, recently extended the Whren doctrine even to parking violations—and effectively, to any and all fine‐only offenses, no matter how trivial. Especially in light of the rampant state of overcriminalization in our country today, that move represents an endorsement of the general warrant in all but name. We have so many criminal laws today that we cannot even count them all, and states routinely regulate a huge swath of generally harmless conduct that regular citizens engage in every day. If violation of any regulation whatsoever is sufficient to justify a police stop (regardless of whether that regulation was actually the motive behind the stop), then police can, in effect, stop anyone they want to. The Cato Institute has therefore filed an amicus brief urging the Supreme Court to grant cert in this case, reverse the Seventh Circuit, and reconsider the Whren doctrine entirely.
Originally published at Cato Institute by Jay Schweikert | April 17, 2018
“Vague laws invite arbitrary power.”
That’s the opening line and general theme of Justice Neil Gorsuch’s concurring opinion in Sessions v. Dimaya, announced today. In this case, Justice Gorsuch joined the Court’s four “liberals” in a 5-4 decision holding unconstitutional a provision of the Immigration and Nationality Act, which renders deportable any alien convicted of an “aggravated felony.” This statutory phrase is defined to include a “crime of violence,” which itself is defined to include both crimes where use or threat of force is an element, as well as”any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” It was this last provision — the “residual clause” of the statute — that was at issue in the case. The majority held that this abstract definition was “impermissibly vague,” and thus a violation of the Fifth Amendment’s Due Process Clause.
In his separate opinion, Justice Gorsuch gave a detailed analysis of the history and legal foundations of the void-for-vagueness doctrine (largely in response to Justice Thomas, who questioned the propriety of this constitutional doctrine both here and in a similar prior case, Johnson v. United States). His concurrence argues that courts must review and strike down unconstitutionally vague statutes, not just to ensure fair notice to potential defendants, but also to enforce the separation of powers between the branches of government:
Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.”
Justice Gorsuch also made clear that subjecting vague statutes to meaningful judicial review is equally important in civil cases, where penalties are often at least as harsh as they are under the criminal law:
[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies.
This analysis obviously has implications reaching far beyond the immigration context, and is encouraging for those concerned with overcriminalization and arbitrary law enforcement in general. Justice Gorsuch correctly notes that “[p]erhaps the most basic of due process’s customary protections is the demand of fair notice.” But today, we have so many criminal laws that it’s impossible to even count them all: at the federal level alone, we estimate that there are about 4500 criminal statutes, and around 300,000 regulatory crimes — many of which do not involve inherently wrongful conduct and lack any “mens rea” requirement (that is, you can be found guilty even if you had no idea you were acting unlawfully). Who could possibly claim that such a system gives the ordinary citizen “fair notice” of the conduct for which they can be punished?
This degree of overcriminalization also places enormous unchecked power in the hands of law enforcement and prosecutors. As Justice Gorsuch recognized, vague and expansive laws “invite the exercise of arbitrary power . . . by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” The staggering breadth of substantive criminalization today means that almost everyone is a criminal, whether they know it or not. If police and prosecutors are inclined to go after you, there’s almost certainly something they can find — whether or not that conduct is genuinely wrongful or harmful.
On the whole, Justice Gorsuch’s opinion in this case is an encouraging sign that he’s aware of and attuned to this set of concerns. Hopefully the newest member of the Court will continue to apply this level of exacting review to vague and arbitrary statutes across the board.
Originally published at Cato Institute by Ilya Shapiro and Reilly Stephens | March 14, 2018
Case: Ellison v. US
Can the government convict you of a crime without showing you had any understanding of the wrongdoing? Mark Ellison was convicted without any such showing and is asking the Supreme Court to take his case.
The case arises out of the tumult of 2008. A real estate company called DBSI went under during the Great Recession, like many other real estate companies at the time. But while for many this unhappy moment meant solely financial losses, for Ellison and his codefendants it meant criminal charges. Section 10(b) of the federal securities law outlaws “any manipulative or deceptive device” used to sell securities. Combined with SEC Rule 10(b)-5, this provides the primary avenue by which the government punishes securities fraud.
The government claims that Ellison and his coworkers defrauded DBSI’s customers in selling them the real-estate investment vehicles that ultimately went bust. But the jury found each innocent on most of the charges, convicting only under the “catch-all” provision of Rule 10(b)-5(c), which outlaws any fraud done “willfully”—but according to the Ninth Circuit ‘willfully’ in this context “does not require that the defendant know that the conduct was unlawful.”
This runs contrary to traditional principles of criminal law. Normally crimes require not just a bad act but also a culpable mental state, what lawyers call mens rea. The difference between murder and manslaughter, for example, is typically whether the perpetrator intended to cause the death or not. But too often these days the government has dispensed with or watered down this traditional requirement, exposing more and more citizens to criminal liability for conduct it is less and less clear should be criminalized.
In addition to watering down the mens rea requirement, the court of appeals determined that the threshold for what did or did not rise to the level of fraud depended on an open-ended test of whether a hypothetical reasonable investor might consider the information “important” in making an investment decision. The Supreme Court and most other circuits, however, have maintained that courts must consider whether, after considering the “total mix” of all the information provided in a case-specific context, the piece of information at issue was “material” to an actual investor’s actual investment decision. Following a test of materiality based on whether some theorized investor might possibly sorta-kinda-coulda thought the information was maybe material expands criminal liability past the horizon.
This case represents yet another example of the overcriminalization that has run rampant throughout our legal system. Defense lawyer and Cato adjunct scholar Harvey Silverglate has estimated that each of us unwittingly commits three felonies a day. When criminality is that capricious, the government can exploit it at its whim, punishing those who displease it through selective prosecution. This is an arrangement more befitting a banana republic than the land of the free.
Cato, joined by the Reason Foundation and law professors Julie Rose O’Sullivan, Ira P. Robbins, Jeffrey S. Parker, and Gideon Yaffe, has filed a brief authored by Paul Kamenar supporting Ellison’s petition. The Supreme Court should take Ellison v. United States and begin to roll back the rising tide of overcriminalization that threatens the liberty of every citizen.
This panel highlighted the issue of overcriminalization—the use of criminal rather than civil or administrative law to punish behavior that historically would not have been punished criminally. The trend toward overcriminalization is yielding dangerous consequences for the rule of law.
Louisiana State University professor emeritus of law John Baker began by noting the troubling fact that we don’t actually know the number of crimes defined within our legal system. Baker stressed that though a crime requires both an actus reus (“guilty act”) and a mens rea (“guilty mind”), too many modern criminal laws do not include an intent requirement, meaning individuals can be prosecuted for unknowingly breaking the law.
Federal appellate attorney Sidney Powell mentioned profound problems with the level of discretion and, hence, power that is given to prosecutors under the U.S. criminal justice system, which has so many criminal penalties attached to what should be civil offenses.
James Copland, director of the Manhattan Institute’s Center for Legal Policy, highlighted studies from a range of states that show overcriminalization is not just a federal problem, for numerous state regulations contain criminal sanctions without any intent requirements. He argued that ultimately the burden of these state sanctions tends to fall on small-business owners and individuals.
University of Notre Dame law professor Stephen Smith noted examples of how abusive prosecution is far too common and emphasized the need for courts to ensure that prosecutors act only within the bounds of their authority under criminal statutes. He echoed Copland’s concerns about the effect of overcriminalization on poor individuals and small-business owners in particular.
Shana-Tara O’Toole, director of the National Association of Criminal Defense Lawyers’ White Collar Crime Policy Unit, closed the discussion by stressing that in order to maintain the rule of law, the reform community needs to work together to overcome the challenges identified by the panel.
To learn more about how you can get involved, please visit the Charles Koch Foundation’s Request for Proposals page.
On Wednesday, December 20, President Trump issued a statement commuting the sentence of Sholom Rubashkin, the former CEO of a kosher meatpacking plant. He had been convicted of financial fraud in 2009 and sentenced to 27 years in prison—a virtual life sentence for the then-51-year old Rubashkin. He had served 8 years of that sentence. Washington Legal Foundation actively participated in the courtroom and public resistance to the excessive sentence through amicus briefs and published commentaries.
With the pro bono support of Professor Douglas Berman, the nation’s leading expert on federal sentencing law, WLF in 2011 urged the U.S. Court of Appeals for the Eighth Circuit to overturn the sentence. Joining WLF on the amicus brief were 18 noted law professors, practitioners, and former federal judges and prosecutors.
WLF argued that the trial judge ignored the U.S. Supreme Court’s repeated admonition not to reflexively presume reasonable any sentence within the range set out by the U.S. Sentencing Guidelines. We also argued that the judge did not fully consider the circumstances surrounding Mr. Rubashkin’s actions, his lack of a criminal record, and his personal history.
Prosecutors not only refused to consent to WLF’s brief, they filed a “resistance” with the Eighth Circuit claiming that under that circuit’s amicus brief policy, the judges could not accept any non-party briefs. After receiving significant criticism for the tactic, prosecutors withdrew their objection.
After the appeals court upheld Mr. Rubashkin’s sentence, WLF and the 18 aforementioned experts supported his petition for certiorari to the U.S. Supreme Court, with Professor Berman as our Counsel of Record. The Court denied review on October 1, 2012.
The Des Moines Register has coverage of the commutation here.
Originally posted by the Cato Institute | November 7, 2017
Prosecutors and other government
lawyers who enforce our nation’s laws wield vast power and exercise tremendous
discretion with little oversight or accountability. The following panelists
have written powerful and often deeply shocking books about their firsthand
experiences with that system and the damage it does to the cause of justice:
Rob Cary, Partner at Williams & Connolly, and author of Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens; Howard Root, Former CEO, Vascular Solutions, and author of Cardiac Arrest: Five Heart‐Stopping Years as a CEO on the Feds’ Hit‐List; and Michael J. Daugherty, Founder and president, LabMD, and author of The Devil Inside the Beltway: The Shocking Exposé of the U.S. Government’s Surveillance and Overreach into Cybersecurity, Medicine and Small Business; moderated by Clark Neily, Vice President for Criminal Justice, Cato Institute.
Anyone who paid attention in fifth-grade social studies would assume that Congress, which makes the law, knows how many crimes are on the books. But that assumption is mistaken. In fact, one of the new bills, introduced by Senator Chuck Grassley (R., Iowa), would require the attorney general to compile a list of all federal criminal offenses.
This highlights, but does not address, a fundamental defect in our justice system: Congress doesn’t know how many federal crimes there are because Congress didn’t create most of them; unelected regulators did. Rules made this way should not serve as the basis for anyone’s imprisonment. At most, those who break them should be subject to civil enforcement measures, such as fines, unless and until Congress signs off on criminalizing the conduct at issue.
According to the best estimates of scholars who have studied overcriminalization, Congress is directly responsible for approximately 5,000 of the over 300,000 criminally enforceable federal rules and regulations. Nearly 99 percent of crimes on the books were never voted on by anyone accountable to the public.
How did this happen? As the federal government inserts itself into more areas of American life — particularly since the New Deal era — it has created a growing network of bureaucracies tasked with making rules that govern everything from agriculture to corporate bookkeeping. According to the Federal Office of Personnel Management, the number of civilian employees in the executive branch has tripled since 1940.
Thanks in part to the development of legal doctrines that require courts to defer to a federal agency’s interpretations of the scope of its own authority, the federal bureaucracy has become dominant in making the rules by which we live. For every law Congress passes, federal agencies create 18 regulations, according to the Competitive Enterprise Institute’s “Unconstitutionality Index.” Many of these rules, thanks to overly broad grants of authority by Congress, have criminal teeth.
The CrimeADay Twitter account, which tracks federal crimes, provides some examples of the conduct eligible for the severe sanction of federal imprisonment. Among them are prohibitions on selling “spaghetti sauce with meat” that is less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle, and taking a used “farm tool” from New York into New Jersey. There may very well be a good reason not to transport used farm tools from New York into other states, but should it be a crime?
Bureaucrats in administrative agencies create crimes only under congressional grants of authority. Far too often, Congress writes bills with regulatory “catch-all” provisions that deem criminal any violation of any regulation created pursuant to the statute. For example, a federal regulation promulgated by the Department of Homeland Security prohibits bringing a bicycle into a building of the National Institutes of Health. That regulation is authorized in Section 1315(c) of Title 40 of the U.S. Code, which criminalizes any “regulation prescribed” pursuant to that provision of law. That is, the violation of any regulation, no matter how trivial, authorized by that particular statute can make you a federal criminal. The U.S. Code is littered with such clauses.
We can be imprisoned for breaking rules made not by our elected representatives pursuant to a vote, but by faceless administrators.
Not only has this practice resulted in an absurdly bloated body of criminal law, it has a turned a core feature of our constitutional republic on its head. Our founders went to war in part because they were subjected to taxes they had no say in. Yet today we can be imprisoned for breaking rules made not by our elected representatives pursuant to a vote, but by faceless administrators inside the drab office buildings that house our federal agencies — people whose names never appeared on a ballot.
The vast majority of criminally enforceable rules were never presented to a congressional committee or debated on the floor of either legislative chamber. They did not survive a vote; nor were they presented to the president for a ratifying signature. Therefore, they should not form the basis for anyone’s imprisonment.
Congress can address the detachment of criminal lawmaking from the political process by requiring congressional approval of regulations as a prerequisite for criminal enforcement, restricting to the realm of civil enforcement rules that are not explicitly signed off on. If we are to achieve Abraham Lincoln’s vision of a representative government that is “of the people, by the people, for the people,” someone in Congress should consider proposing a plan to bring criminal lawmaking back into the purview of the representative branch of our government, where it belongs.
RAFAEL A. MANGUAL is a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research, and a contributing editor of City Journal.
Arlington, Va., April 26, 2017—Ahead of President Donald Trump’s 100th day in office, the Charles Koch Institute (CKI) today released a poll surveying 1,200 American voters who participated in the 2016 presidential election about their views on criminal justice issues such as civil asset forfeiture, overcriminalization, and mandatory minimum sentencing.
The results, which represent responses from a broad range of Americans—including voters who identify as liberals, moderates, and conservatives—suggest significant support for criminal justice reform. Notably, this support even comes from Trump voters: When asked whether criminal justice reform is a priority for the country, 81 percent of Trump voters described the issue as either “very important” (34 percent) or “somewhat important” (47 percent). Trump voters were also more likely to have experience with the criminal justice system, as 54 percent of them reported knowing someone who is or has been incarcerated.
When asked about civil asset forfeiture, 59 percent of Trump voters either “strongly disagreed” (28 percent) or “disagreed” (31 percent) that police should have the right to seize private assets of a suspect even if that individual is never prosecuted.
Furthermore, when asked if judges should have more freedom to assign forms of punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” (26 percent) or “agreed” (37 percent).
“There appears to be an appetite among conservatives to get ‘right-on-crime,’” said Vikrant Reddy, a senior research fellow with CKI. “Conservatives have been observing the criminal justice system, and they have opinions on how to make it better. In short, they want reforms that prioritize public safety, respect individual rights, and advance human dignity.”
A leading web-based panel research firm fielded the survey of 1,200 registered voters who participated in the 2016 presidential election. Results are un-weighted. Respondents were sorted by whether they considered themselves liberal, moderate, or conservative on both economic and social issues; whether they lived in rural, suburban, or urban areas; and whether they personally knew someone who is or has been incarcerated.
The Charles Koch Institute
The Charles Koch Institute is a 501(c)3 educational organization that aims to advance an understanding of how to help people improve their lives through research, education, and discussion. CKI also works to foster a national conversation on critical issues such as criminal justice reform that have a strong impact on the advancement of societal well-being.
Late last month the Justice Department’s Office of the Inspector General (OIG) released a 74-page report on how the department oversees asset forfeitures– the practice in which law enforcement and government agencies seize property they believe was connected to a crime.
The asset seizures clearly needed a closer look. Regardless of how President Trump and Attorney General Jeff Sessions feel about the topic— and both have been skeptical of reforming this system — the new report should inform the attorney general’s newly announced Task Force on Crime Reduction and Public Safety and prompt congressional leaders to take a closer look.
According to the OIG report, the Drug Enforcement Administration, Federal Bureau of Investigations, and Bureau of Alcohol, Tobacco and Firearms grab the assets of thousands of people annually, and there is big money involved.
The DEA alone has made more than 80,000 cash seizures resulting in forfeitures that totaled more than $4 billion over the last decade. The overall total for the Justice Department seizure program has grown over….
Originally published in National Review by C Jarrett Dieterle | February 24, 2017
The Supreme Court nominee has been a sharp critic of the rapid expansion of the criminal code.
Much of the media attention to date surrounding President Trump’s Supreme Court nominee Neil Gorsuch has centered on the judge’s views of originalism, separation of powers, administrative law, and related topics. Largely overlooked has been an area where Judge Gorsuch’s track record shows a keen awareness of another issue critical to the federal courts: America’s criminal-justice system. TOP ARTICLES3/5READ MOREBloomberg Claims Russia Is AidingSanders in Primary to Aid Trump in General Election
The importance of criminal law is underscored by the breathtaking size of the federal criminal code. Nearly 5,000 federal crimes are on the books, not including the sort of regulatory crimes that likely push the number above 300,000. Worse yet, many criminal laws are written in vague terms that fail to clearly identify what constitutes a crime, leaving Americans in the dark about whether their conduct in many cases is criminal.
In a 2013 lecture for the Federalist Society, Gorsuch confronted the problem of over-criminalization, whereby criminal laws target conduct that is not inherently wrong. Using examples of obscure crimes, such as ripping off a mattress tag, Gorsuch argued that no American can possibly comprehend all the activities prohibited by federal law. “Without written laws, we lack fair notice of the rules we must obey,” as he puts it, adding that fair notice is also lacking when we have “too many written laws.” In other words, it’s unreasonable to expect Americans to be aware of thousands of laws, much less stay on the right side of them.
Gorsuch’s expressions of concern about over-criminalization haven’t been confined to speeches. In last year’s Caring Hearts Home Services v. Burwell decision, he had harsh words for a federal agency that forgot its own regulations and misapplied them to a home health-care provider. Gorsuch chastised the agency, noting that it “issues literally thousands of new or revised guidance documents every single year,” making it nearly impossible to know which regulations apply at any given time. He rhetorically asked: If the government itself, “the very ‘expert’ agency responsible for promulgating the law,” cannot keep its own laws straight, how can the general public?
Gorsuch has equally strong views on the issue of criminal intent. Under traditional common law, acting with mens rea (a guilty or criminal mind) is a core component of committing a crime. This understanding prevents individuals who inadvertently or accidently do something wrong from being branded criminals.
In United States v. Games-Perez (2012), the government charged a defendant under a law that made it illegal to “knowingly” possess a gun if you were previously convicted of a felony. The defendant claimed he lacked the necessary criminal mindset to be found guilty because he lacked knowledge of his previous felony conviction. Gorsuch sided with the defendant, arguing that the defendant had to know both that he possessed a gun and that he was a felon. Although overruled by his colleagues, in his dissent he took a principled stand to ensure that only those who truly intend to break the law are targeted.
Gorsuch also has shown willingness to rely on another historical judicial doctrine, the “Rule of Lenity”: Courts that confront ambiguous and vague criminal statutes are urged to interpret those laws in favor of defendants. Gorsuch applied this rule — also a favorite of the late Justice Antonin Scalia — in United States v. Rentz (2015), a case involving a law that imposed heightened penalties on individuals who “use” a gun to commit a violent crime or drug offense. Although the defendant in the case had “used” his gun only once, he had managed to kill two people, resulting in, the government argued, two separate violations of the law. In the majority opinion, Gorsuch engaged in a painstaking textual analysis of the law — he famously diagrammed a sentence — before invoking the Rule of Lenity to hold that the defendant had committed only a single violation (a finding that reduced his sentence).COMMENTS
“Our job is always in the first instance to follow Congress’s directions,” Gorsuch wrote. “But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor.”
Gorsuch’s principle that any “tie” should go to citizens over the government shows his wariness of the vast powers possessed by prosecutors in an over-criminalized society. His tendency to view criminal laws, especially vague ones, with a healthy measure of skepticism should give opponents of over-criminalization a much-needed ally on the nation’s highest court.
C. JARRETT DIETERLE is the director of commercial freedom and a senior fellow at the R Street Institute.
Originally published at Cato Institute by Tim Lynch | February 16, 2017
People: Aaron Swartz, Dudley Hiibel, Bobby Unser, Eric Garner
Policymakers should
Override the old maxim that “ignorance of the law is no excuse” (given the breadth of the criminal codes now on the books, that doctrine no longer makes sense);
strengthen the rule of lenity for criminal cases by enacting a statute that explicitly provides for the strict construction of all criminal laws; and,
prohibit administrative agencies from creating new crimes.
Over the past 10 years, there has been much discussion in academic and policy circles concerning “mass incarceration” in the United States. Many have observed that there is something incongruous about America, the land of the free, finding itself with one of the highest incarceration rates in the world. The United States has about 2 million inmates and another 7 million persons under the “supervision” of the criminal justice system. Something is amiss, but the root of the problem is not sentencing policy; rather, it is the burgeoning criminal codes at the “front end” of the criminal system. Policymakers at all levels of government have criminalized so many activities that it should come as no surprise that our courthouses are clogged with cases and our prisons are overflowing with inmates. Politicians have recklessly sought short‐term political advantage by taking “credit” for new laws while ignoring the long‐term consequences of their policy decisions. It is no overstatement to say that the politics of criminalization threaten the very foundation of our free society.
The Legal Minefield
Every year American lawmakers add new crimes to the law books. Under the Constitution, crime fighting is supposed to be reserved to state and local government. But over the past 40 years, Congress has federalized many of the crimes that have always been investigated by local police. Politicians have also found ways to recriminalize criminal conduct. “Hate crimes,” for example, duplicate crimes such as murder and assault and add stiffer penalties when prosecutors can prove that bigotry was a motivating factor behind the violence.
The criminal law has also followed the rise of the regulatory state. In addition to the thousands of criminal laws, there are now tens of thousands of regulations that carry criminal penalties, including prison time. The web of rules has become so vast that it seems as if most Americans are now criminals whether they realize it or not.
The overcriminalization phenomenon extends beyond the realm of violence, fraud, vice, and commercial regulations. Consider these cases: • A river guide saw a teenager in distress and so left his boat and swam to save her. He was charged with “obstructing government operations” for not waiting for the search and rescue team. • Federal prosecutors indicted computer prodigy Aaron Swartz for improperly downloading articles from the digital library JSTOR. The Justice Department maintains that when a website owner’s terms‐of‐service policy is violated, a crime is also committed — even though owners retain the right to change the terms at any time and without prior notice. Frightened by the prospect of bankruptcy, a long prison sentence, or both, Swartz took his own life. • Retired race car driver Bobby Unser was prosecuted by federal authorities for driving his snowmobile on protected federal land. Unser and his friend got lost during a snowstorm and were desperately seeking shelter or assistance. • Nevada rancher Dudley Hiibel was jailed for declining to give his name to a policeman. • Members of a Christian outreach group were arrested and prosecuted for feeding the homeless in a Ft. Lauderdale park. Local rules restricted food sharing.
There was a telling moment before the Supreme Court in 2009 when a government lawyer was explaining the scope of the federal “honest services” law. The lawyer from the Department of Justice said that law criminalized any ethical lapse in the workplace. In response, Justice Stephen Breyer exclaimed, “There are 150 million workers in the United States. I think possibly 140 million of them flunk your test.” The government lawyer did not deny Justice Breyer’s observation. As unbelievable as it may sound, the federal government considers more than a hundred million Americans to be criminals. And that is only under its interpretation of a single federal statute. As noted, there are thousands and thousands more. The overcriminalization phenomenon is thus quite real.
The Consequences of Overcriminalization
There are several reasons to be alarmed by the exponential growth of criminal rules and regulations. First and foremost, America has always prided itself on its freedom; but a society in which the criminal rules are so pervasive that no one is safe from arrest and prosecution cannot be described as free. The traditional common law crimes — murder, rape, theft, assault — do not restrict the freedom of the citizenry to live their own lives peaceably. However, as soon as the government goes beyond the basic crimes to prohibit other human activities, the adverse impact on liberty becomes evident. As the criminal law expands, there is a concomitant diminution of liberty.
Second, when criminal code violations become virtually unavoidable, the safeguards in the Bill of Rights become ineffectual. As the Harvard legal scholar Henry Hart observed, “What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?” Hart’s point was that if some rule can be shown to have been violated, a speedy trial cannot help the person facing a prison sentence. And an able defense attorney can only help his client by making a plea for leniency.
Third, law enforcement resources are limited. The police and courts are busy enough with violent crimes, theft, and extortion. Those cases will be neglected if the police are burdened with additional responsibilities. Andrew McCarthy, a former federal prosecutor, reminds us that there is no getting around the tradeoff: time and money “spent investigating conduct that is not inherently criminal are time and money lost to the thwarting of much more serious crime.”
Fourth, policymakers should always pause to remember that every rule brings about the possibility that the police will have to employ violence to enforce that rule. Eric Garner was killed by New York City police as they were trying to enforce a rule against selling individual cigarettes (“loosies”) on the street. Yale Law School professor Stephen Carter has noted that if policymakers want to seriously reduce the opportunities for dangerous interactions between police and civilians, they should stop talking about “better police training” and scale back the criminal codes.
Fifth, another inevitable consequence of overcriminalization has been more governmental errors. Innocent people are sometimes arrested, prosecuted, and imprisoned. Wrongful convictions are not only unjust to the prisoner, but to his or her family — children, spouse, parents, and siblings. One effective way to limit those miscarriages of justice is to keep the criminal system as small as possible. If America has two million people imprisoned and the government has done its job properly in 95 percent of the cases, that means 100,000 people are unjustly imprisoned. By scaling back the criminal codes, so that the total number of people prosecuted and imprisoned is reduced, policymakers could also reduce the number of innocent persons mistakenly imprisoned.
Reform Measures
Of course, overcriminalization can be addressed in many ways. The following are three possible routes to correcting the system.
Override the Old Maxim That “Ignorance of the Law Is No Excuse”
It is absurd and unjust for the government to impose a legal duty on every citizen to “know” all of the mind‐boggling rules and regulations that have been promulgated over the years. The old maxim that “ignorance of the law is no excuse” only makes sense when the criminal law covers conduct that is plainly and inherently wrongful, such as murder and theft.
To illustrate the rank injustice that can occur, take the case of Carlton Wilson, who was prosecuted because he possessed a firearm. Wilson’s purchase of the firearm was perfectly legal. Years later, a judge issued a restraining order against Wilson during his divorce proceedings. He didn’t know that meant he had to give up the firearm. When Wilson protested that the judge never informed him of that obligation and that the restraining order itself said nothing about firearms, prosecutors shrugged, “ignorance of the law is no excuse.” Although the courts upheld Wilson’s conviction, Judge Richard Posner filed a dissent: “We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson’s milieu is able to take advantage of such an opportunity.” Judge Posner noted that Wilson would serve more than three years in a federal penitentiary for an omission that he “could not have suspected was a crime or even a civil wrong.”
Policymakers should override the “ignorance‐is‐no‐excuse” maxim by enacting a law that requires prosecutors to prove that regulatory violations are “willful” or, in the alternative, that permits defendants to plead a good‐faith belief in the legality of one’s conduct. The former rule is already in place for our complicated tax laws. It should also shield unwary Americans from all laws and regulations as well.
Strengthen the Rule of Lenity
Even if there were only a few crimes on the books, the terms of our criminal laws ought to be drafted with precision. After all, there is little difference between a secret law and a published regulation that cannot be understood. The American Revolutionaries believed in the Latin maxim nullum crimen sine lege, which means there can be no crime without a law. In other words, people can be punished only for conduct previously prohibited by law. That principle is clearly enunciated in the ex post facto clause of the Constitution (Article I, Section 9). But the purpose of that clause can be subverted if the legislature can enact a criminal law with vague terms that can be interpreted broadly by prosecutors or judges. Such a law would not give citizens fair warning of the prohibited conduct.
One way to address the problem of vague laws that were previously enacted would be for legislators to direct the courts to follow the “rule of lenity.” That doctrine resolves legal uncertainties in favor of the accused, not the government. Unfortunately, the courts have not invoked that doctrine consistently.
Prohibit Administrative Agencies from Creating New Crimes
Beyond the thousands of criminal statutes enacted by legislatures, there are also thousands of regulations that carry criminal penalties. It is the responsibility of elected officials to carefully consider what infractions can result in a criminal conviction and prison time.
The case law that has thus far allowed the delegation of lawmaking has drawn criticism. U.S. district judge Roger Vinson, for example, has observed:
A jurisprudence which allows Congress to impliedly delegate its criminal lawmaking authority to a regulatory agency such as the Army Corps — so long as Congress provides an “intelligible principle” to guide that agency — is enough to make any judge pause and question what has happened. Deferent and minimal judicial review of Congress’ transfer of its criminal lawmaking function to other bodies, in other branches, calls into question the vitality of the tripartite system established by our Constitution. It also calls into question the nexus that must exist between the law so applied and simple logic and common sense.
Making conduct criminal is a serious matter. It is a decision that ought to be made by the people’s elected representatives, whether in Congress, the state legislatures, or city councils.
Conclusion
Political observers have noted that criminal justice reform is one of the few policy areas that is now finding support from across the political spectrum. On the left, law professor Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, tells her students that even though she has earned fancy degrees, she is a criminal. She challenges others to come clean as well. After all, just because a person has not been caught does not mean she is not a criminal in the eyes of the law. Alexander believes reform will happen when more people come to terms with their own “criminality.” On the right, U.S. circuit judge Alex Kozinski makes a similar point in his article, “You’re (Probably) a Federal Criminal.” Most Americans are criminals, but don’t know it, he writes.
There are some indications that the policy climate is becoming more receptive to fundamental reform. A recent cover story in Harper’s was titled, “Legalize It All: How to Win the War on Drugs.” A few weeks later, a cover story in The New York Times Magazine posed the question, “Should Prostitution Be a Crime?” While these questions are still being debated, it seems clear that more and more people are coming to recognize that vices are not crimes that warrant the intervention of police powers. Over the past few years, policymakers in Vermont, Maine, Colorado, and New Hampshire have voted to repeal criminal laws regarding adultery. These developments are welcome, but policymakers should move more aggressively toward criminal code reform and prune the law books of unnecessary and unjust criminal provisions. An expansive criminal code is inimical to a free society.
Originally published by Cato Institute by Walter Olson | February 16, 2017
Congress and state lawmakers (and where appropriate, the president and executive branch law enforcement officials) should
• review existing law with an eye toward rolling back overcriminalization and replacing criminal penalties with civil sanctions where feasible; • enact reforms such as the model Criminal Intent Protection Act to bolster recognition of mens rea (punishment should ordinarily require a guilty state of mind, not inadvertent noncompliance) as well as the related mistake of law defense in criminal law; • codify the common law rule of lenity (ambiguity in law should be resolved against finding guilt), as Texas joined other states in doing in 2015; • devise safe harbor provisions that enable economic actors to avoid criminal liability by behaving reasonably and in intended compliance with the law; • limit agency discretion to create new crimes without an act of the legislature; • enact guidelines to strengthen judicial oversight of deferred prosecution agreements and nonprosecution agreements (explicit court approval, not the unilateral say‐so of government prosecutors, should be required for appointment of corporate monitors or the extension of time under supervision); • enact asset forfeiture reforms such as Rep. Jim Sensenbrenner’s (R‑WI) Due Process Act, including requiring that conviction be a prerequisite for forfeiture; • review and, where appropriate, reduce or coordinate per‐offense fines and sanctions to avoid levying penalties disproportionate to the gravity of misconduct; • prohibit, as a proposed New Mexico law would do, the allocation of settlement moneys (cy pres) to charities, nonprofits, or advocacy groups not themselves injured; • assign penalties, forfeitures, and settlement proceeds to the public treasury or, where appropriate in certain cases, to private parties who can show specific individual injury from the offense (penalties should not fund particular government agencies in ways that incentivize zealous enforcement or insulate the agencies from appropriations oversight); • prohibit the payment of public lawyers and forensics experts on contingency, that is, in ways dependent on case outcome or the magnitude of penalties (this principle should apply alike to career prosecutors, other staff public lawyers, experts, and outside law firms); existing contingency arrangements should be terminated;) and • impose transparent principles of selection and payment on outside contracting for legal services.
Prosecution: A Climate of Abuse
“The increasing criminalization of corporate behavior in America,” noted The Economist in 2014, “is bad for the rule of law and for capitalism.” In fact, the British weekly noted, prosecution as a means of regulating business in the United States has become “an extortion racket… . The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company… .
“Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people — with souls and bodies — were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs.”
Many abuses arise from prosecutors’ search for publicity and glory. These include splashy raids on offices and “perp walks” for executives, in situations where a simple request to cooperate would have sufficed, and manipulation of the media through leaks and prejudicial publicity.
The most natural way to address prosecutorial abuse might seem to be disciplinary sanctions based on traditional standards of legal ethics and applied by judges or bar panels. The trouble with relying on that solution is that few prosecutions of large businesses eventuate in trial before a judge. When a business does put up a fight, it sometimes wins big. In 2016, after the Department of Justice (DoJ) indicted the FedEx Corporation on charges that it had knowingly done business with illegal pharmacies, FedEx refused to settle; once before a judge, DoJ’s case collapsed in spectacular fashion and it dropped the charges midtrial. Much more often, however, businesses faced with a doubtful or overreaching prosecution take their lawyers’ advice and fold their hands and try to get the best possible settlement. For businesses based on trust or regulatory permission, the costs and risks of defying federal law enforcement — legal, reputational, and otherwise — are just too high. The government has the upper hand. That is one reason lawmakers need to step in.
Overcriminalization and the Need for Clear and Compliable Law
There are now more than 4,000 federal criminal offenses, up from approximately 165 in 1900, 2,000 in 1970, and 3,000 in 1982, along with hundreds of thousands of regulations backed up by criminal sanction.
Under the rule of law, citizens should be able to arrange their actions so as to avoid the commission of crimes. Yet the proliferation of highly technical laws, many going beyond the prohibition of intrinsically wrongful acts, makes it more likely that even a careful business with thousands of employees will commit some violations — especially if criminal infraction of regulations can be assessed without reference to mens rea (i.e., guilty intent).
As Sen. Ted Cruz (R‑TX) has written, “Congress should enact legislation that requires the government to prove the defendant knowingly violated the law — or that, at least, allows a ‘mistake of law’ defense — for certain classes of crimes that have no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the government has criminalized non‐blameworthy conduct for regulatory purposes, ignorance of the law should be a valid defense to criminal liability.”
Four Outrageous Business Prosecutions
• “When I got there, there were people in SWAT attire that evacuated our entire factory.” Thirty federal agents raided the headquarters of Nashville’s legendary Gibson Guitar, carting away a fortune in wood and instruments and interrogating staff without benefit of a lawyer. The charge was that the company had used small quantities of imported wood without doing enough to ascertain suppliers’ compliance with a federal law called the Lacey Act. Gibson’s chief executive officer — who “had not received so much as a postcard telling the company it might be doing something wrong” — got a letter the next day warning him that if he so much as touched any guitar left in the plant he could be charged with a separate federal offense, with possible jail time, for each “violation.” After much press coverage sympathetic to the company, the feds settled for a relatively low $300,000, a sum far below what Gibson would have been likely to pay in legal defense, and returned the seized instruments. • The federal government extracted more than a billion dollars from Toyota in a settlement, even though its own engineers at the National Highway Traffic Safety Administration cleared the Japanese automaker of charges that its cars were subject to runaway acceleration. The penalties were mostly premised on minor regulatory infractions unrelated to any injuries or accidents. The Department of Justice’s press announcement employed language suggesting that the problem of mechanical acceleration had been real, though Washington had good reason to know better. • The federal government and various states, notably New York, launched enforcement actions against major banks whose actions, it was alleged, had helped propel the mortgage bubble and crash of 2008. No one really knew, and no court ever decided, whether the charges were true or what a suitable penalty level might be. When the dust settled, major banks had agreed to pay record settlements, some going to investors and consumers, but with hundreds of millions also going to nonprofit organizations that the various law enforcement officials saw as worthy causes — which, in the case of the Obama administration and the attorney general of New York, happened also to be close political allies. • Several small family‐owned retailers, including a Maryland dairy farm, a Detroit‐area grocery, and a North Carolina convenience store, violated the little‐known federal “structuring” law, which prohibits depositing money into banks in sums under $10,000 so as not to trigger a paperwork filing to the government, even when no tax or other laws are being evaded in the process. Federal agents seized the families’ bank accounts. With volunteer legal help, and amid public outcry, all three businesses managed to get their money back. But many other small businesses swept up by the same law, sometimes unable to pay lawyers because of the freeze on their assets, had by that time capitulated to large forfeitures.
The situation is even worse when laws are so vague that even reading them does not give fair notice of what they prohibit. Courts are inconsistent about applying the “rule of lenity” (ambiguities should be resolved against finding guilt) and the “void for vagueness doctrine” (laws can fail constitutional muster if they leave too much doubt about what they prohibit). As a result, certain areas — including federal mail and wire fraud, “honest services” fraud, antitrust law, and securities law — have proved particularly resistant to clarification.
In recent years, the U.S. Department of Justice has also sought to expand something called the “responsible corporate officer doctrine.” That doctrine allows the government to hold executives criminally liable for the sins of the corporation generally, even when those executives have not been shown to personally hold a guilty state of mind. Although the doctrine somehow passed muster at the U.S. Supreme Court in the cases of United States v. Dotterweich (1943) and United States v. Park (1975), it is ripe with potential for injustice.
Settlements and Slush Funds
Deferred prosecution agreements (DPAs) and their close relatives, nonprosecution agreements (NPAs), have become a major tool of white‐collar prosecution in recent years. Typically, in exchange for avoiding trial, a business defendant agrees to some combination of cash payment, agreement to change behavior, and submission to future oversight by DoJ. Often, DoJ assigns “monitors” with broad, vaguely defined powers to oversee the affairs of defendant companies and report back to Washington on an ongoing basis.
NPAs at the federal level date back only to 1992. But they have multiplied rapidly, from 1 or 2 a year in the nineties to more than 30 a year during the Obama administration. Since 2010, 16 of the largest U.S. businesses have come under Department of Justice supervision, with tens of billions of dollars extracted in settlements.
Notably, in these agreements, a business defendant may pledge to alter its future course of action in ways that a court would never have ordered had the case gone to trial but that the government is interested in extracting as concessions. These deals may have the effect, or even the aim, of helping or hurting third parties who have the ear of the government, such as customers or competitors of the targeted defendant.
“Without any adjudication to establish wrongdoing and without any judicial oversight, businesses have agreed through these settlements to remove or replace key officers and directors; to change sales, marketing, or compensation plans; and to appoint new officers or independent ‘monitors’ reporting to prosecutors but paid by the companies,” write James Copland and Isaac Gorodetski. The two argue that this process adds up to a “shadow regulatory state” lacking many of the administrative law protections of the visible regulatory state. Appointed monitors, in particular, can wield ill‐defined but wide‐ranging power with little accountability if it is put to heavy‐handed use.
What to do? The United Kingdom took an early lead with its 2013 Crime and Courts Act, which, among other provisions, directs judges to determine that the provisions of DPA equivalents are “fair, reasonable, and proportionate.” In the U.S. Congress, a proposal called the Accountability in Deferred Prosecution Act of 2014 attempted to pursue similar principles. Much more is needed if U.S. law is to catch up with the institutional reality of a Department of Justice that has become the nation’s most powerful business regulator without anyone’s having designed it that way.
At base, the case for civil liberties in the business world is much the same as the case for civil liberties generally. Businesses deserve impartial prosecution in the interests of justice, not merely scoring wins for the government; speedy trial and clear exposition of charges; determination of guilt on an individualized, not group, basis; no excessive punishment; protections against baseless search and seizure; and, in general, the full range of due process protections. The marketplace, like the rest of American society, deserves the full protections of the U.S. Constitution.
Frank, Theodore H., “Cy Pres Settlements.” Testimony before the House Judiciary Committee, Subcommittee on the Constitution and Civil Justice Examination of Litigation Abuse, 113th Cong., March 13, 2013.
Shapiro, Ilya, and Randal John Meyer. “Obama’s Weaponized Justice Department” (responsible corporate officer doctrine). National Review, October 30, 2015.
