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Yates v. United States: Angling for A Narrower Statute

Originally published at National Review by Jonathan Keim | November 6, 2014

The justices made waves Wednesday during Supreme Court arguments (transcript here) in Yates v. United States, a case about a federal obstruction of justice statute, 18 U.S.C. § 1519, that was passed as part of the Sarbanes-Oxley legislation, which was originally intended to broaden federal white collar criminal laws after the Enron debacle. This particular provision of Sarbanes-Oxley makes it a crime when someone “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with intent to impede, obstruct, or influence an investigation, and gives the crime a maximum penalty of 20 years.  TOP ARTICLES3/5READ MOREBloomberg Claims Russia Is AidingSanders in Primary to Aid Trump in General Election

The defendant, a commercial fisherman, was convicted under the statute for tossing three undersized fish back into the ocean after a federal official instructed him to hold onto them so they could be seized, and was sentenced to 30 days in prison.

The parties’ arguments on appeal were even-keeled: the defendant argued that the statute, being focused on white-collar information storage, did not apply to red grouper. The government argued that the court should allow the statute to have its full linguistic scope. Both parties ably articulated and defended their positions. First-year law students still trying to figure out how legal reasoning works should note the Supreme Court justices testing the boundaries of the statutory phrase “tangible objects” by reference to Internet “cloud” storage, typewriters, iPads, laptop and desktop computers, iPhones, an empty filing cabinet, a knife with the defendant’s name written on it, an EPA questionnaire, and digital and analog photography (pp. 5-7, 12, 16, 20-22).

Under the surface, though, this case was about much more. As became clear at oral argument, the justices had deep concerns about the scope of federal criminal law and the government’s exercise of prosecutorial discretion.

The justices initially snagged their hooks on the overcriminalization problem in this case. As you can imagine, the specific purposes of Sarbanes-Oxley – stricter punishments for white collar crimes – have nothing to do with fish. Yet the words of the statute are almost impossibly broad. Justice Breyer’s skepticism was noteworthy (p. 16):

MR. BADALAMENTI: The narrowing is the document itself. This statute’s exceedingly broad. Our –

JUSTICE BREYER: But my problem, of course, is reading the statute and taking your argument in the context that you mean it, which is we must look for a way to narrow this statute, which at first blush seems far broader than any witness tampering statute, any obstruction of justice statute, any not lying to an FBI agent statute that I’ve ever seen, let alone those within Section 15 [sic].

Justice Scalia was particularly critical, describing the statute as “incredibly expansive.” (p. 17) Under questioning, the government lawyer admitted that the statute did not require the defendant to know that a particular matter was within federal jurisdiction (pp. 39-40) to be guilty of a crime, which seemed to surprise Justice Scalia. Justice Scalia also asked the government lawyer to help him find a limit to what might constitute a “tangible object”, triggering a flippant response that tacitly conceded the point (pp. 43-44):

MR. MARTINEZ: I think — I think it’s true that the term “tangible” is different. I think that the way to understand the term “tangible” is the way in which Congress and — and the rules always use the term “tangible” in connection with things or objects, which is as a way to refer to all types of — of objects, all types of evidence.

We’ve cited 35 different provisions of the U.S. Code and of the — the discovery rules in the criminal context and in the civil context. Those are at Footnote 3 of our brief. In all of those instances, they use the phrase “tangible things” or “tangible object” to refer to everything. And so there’s no reason to think that the addition of the word “tangible” somehow shrunk the scope of the statute. And even if it did shrink –

JUSTICE SCALIA: Is there such a thing as an intangible object? I’m trying to imagine one.

MR. MARTINEZ: I — I think the — you could say that the object of the game of Monopoly is to win all the money, but that’s not really what Congress was looking at here.

        ​(Laughter.)

Laughter seemed to bubble to the surface in every swirling eddy of argument. Justice Kagan triggered an early moment of levity when she admitted to not being able to pronounce the name of the textual canon ejusdem generis (p. 8) and Justice Sotomayor provoked guffaws when the defense lawyer (wisely) declined her request to make the case for applying a different statutory provision to her client (pp. 13-14). Justice Breyer even intercepted a question addressed to the petitioner by Justice Scalia and answered it himself (pp. 17-18).

The Justices seemed especially eager to bait the audience to laughter with criticisms of the prosecution and Congress. The Chief Justice mocked the government lawyer’s over-the-top characterization of the defendant’s criminality (pp. 29-30):

MR. MARTINEZ: . . . And just to emphasize what happened here, Mr. Yates was given an explicit instruction by a law enforcement officer to preserve evidence of his violation of Federal law. He directly disobeyed that. He then launched a — a convoluted coverup scheme to — to cover up the fact that he had destroyed the evidence.  He enlisted other people, including his crew members, in  executing that scheme and in lying to the law  enforcement officers about it. And then –

CHIEF JUSTICE ROBERTS: You make him sound like a mob boss or something. I mean, he was caught —

        (Laughter.)

CHIEF JUSTICE ROBERTS: The fish were — how many inches short of permitted were the fish?

MR. MARTINEZ: The fish were — it varied fish by fish, Your Honor.

        (Laughter.)

Justice Scalia likewise criticized Congress’s passage of several adjacent and overlapping crimes that cover largely the same conduct. After the government lawyer explained that these were the result of several poorly-drafted bills (pp. 38-39), Justice Scalia commented that “that explains how it happens. It doesn’t explain how it makes any sense.”  (Scalia was too polite to use a Dickens character’s less delicate characterization.)

Even Justice Kennedy, who is not usually droll, commented (p. 54) that “Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act.”

The arguments also revealed the justices’ serious concerns about the government’s failure to exercise prosecutorial discretion in this case. Justice Scalia was particularly piqued, making the first of several allusions to Bond v. United States (2014) by members of the Court (pp. 27-28):

JUSTICE SCALIA: Is there nothing else you who — who do you have out there that — that exercises prosecutorial discretion? Is this the same guy that that brought the prosecution in Bond last term?

* * *

JUSTICE SCALIA: No, I’m not talking about Congress. I’m talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?

Justice Ginsburg inquired about the Department of Justice’s charging policy, and after the government attorney explained the policy laid out in the U.S. Attorney’s Manual, Justice Scalia again ripped into the government (p. 29):

JUSTICE SCALIA: Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

It’s not clear whether Justice Scalia was speaking as a member of the Court or as a hypothetical legislator, but either way, these are strong words coming from a textualist.  Later, Justice Breyer piled on (pp. 35-36):

JUSTICE BREYER: I mean, somebody comes to the door and says — I’ve been through this. He passes a piece of paper through the door. It’s the postal — it’s a postman. He says, please send this back. It’s our proper duty to deliver the mail. I say, I hate postmen and I rip it up. 20 years.

        (Laughter.)

MR. MARTINEZ:   Your Honor, that would not be covered.

        (Laughter.)

JUSTICE BREYER: And why wouldn’t it happen? It wouldn’t happen because you’d never prosecute it, though I’ve had my doubts recently.

        (Laughter.)

Even Justice Kennedy deep-sixed the government’s view of prosecutorial discretion, declaring (pp. 52-53) that “we should just not use the concept or refer to the concept at all anymore.”

The Court’s concerns about prosecutorial discretion raise another question: In general, promises to use prosecutorial discretion wisely are not an appropriate basis for interpreting a statute broadly. But would it ever be appropriate for the Court to narrow the statute because the government articulates an unwise prosecution policy?  If so, how far could it narrow the statute?  And on what basis?

Oliver Wendell Holmes once wrote that “hard cases make bad law,” and I think that’s true in this case. The Court’s moral objections to this case make what would otherwise be a fairly straightforward question of statutory interpretation into a much more difficult issue. The text is vastly broader than the Court seems to think is just or appropriate, particularly in light of the 20-year statutory maximum penalty. But as Justice Scalia observed, the terms of the statute are not vague, just broad. Thus, a dilemma: does the Court give a vastly overbroad statute its full linguistic sweep, or does it apply other principles in a way that would narrow it?

The options are unattractive.  On the one hand, the Court could simply apply the law as written and hope that Congress fixes it (which might make for some excellent bipartisan legislation in the next Congress). On the other, the Court could apply some broad principle that narrows the statute in spite of its text, just as it did in Bond (as the Chief Justice suggested on p. 46). But the difficulty with this sort of solution, as it was with Bond, is that the breadth of the principle also reduces certainty about what conduct is legal and illegal, especially for statutes that have not yet been narrowed. Or doing so could amount to judging, not based on existing rules of jurisprudence, but on purely result-oriented principles concocted only for the purposes of one case.

But although the rule of lenity and other canons of interpretation help a little bit, the statute has the textual breadth it does because Congress said so. Since the overbreadth problem was caused by Congress, the best way to deal with the overbroad statute is to amend it legislatively instead of applying fishy interpretive fixes. Otherwise the Court would be asserting a role for itself as statute-fixer-of-last-resort, an impossible position that elevates the Court’s role beyond that of deciding cases in accordance with law. In addition, narrowing the statute would effectively insulate Congress and the Executive from accountability for decisions about what conduct should be prosecuted. Consequently, the best way for the Court to decide this case is probably, as unattractive as it may be, to apply the law as written, affirm the conviction, and exhort Congress to fix the statute. 

JONATHAN KEIM — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and … @jonathankeim

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The Plague of Overcriminalization

Originally published at NationalReview.com by George Will| December 11, 2014

America might at long last be ready to stare into the abyss of its criminal-justice system.

By history’s frequently brutal dialectic, the good that we call progress often comes spasmodically, in lurches propelled by tragedies caused by callousness, folly, or ignorance. With the grand jury’s as yet inexplicable and probably inexcusable refusal to find criminal culpability in Eric Garner’s death on a Staten Island sidewalk, the nation might have experienced sufficient affronts to its sense of decency. It might at long last be ready to stare into the abyss of its criminal-justice system.

It will stare back, balefully. Furthermore, the radiating ripples from the nation’s overdue reconsideration of present practices may reach beyond matters of crime and punishment, to basic truths about governance.

Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that when signs of disorder, such as broken windows, proliferate and persist, there is a general diminution of restraint and good comportment. So, because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles.

Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.

Harvey Silverglate, a civil-liberties attorney, titled his 2009 book Three Felonies a Day to indicate how easily we can fall afoul of America’s metastasizing body of criminal laws. Professor Douglas Husak of Rutgers University says that approximately 70 percent of American adults have, usually unwittingly, committed a crime for which they could be imprisoned. In his 2008 book, Overcriminalization: The Limits of the Criminal Law, Husak says that more than half of the 3,000 federal crimes — itself a dismaying number — are found not in the Federal Criminal Code but in numerous other statutes. And, by one estimate, at least 300,000 federal regulations can be enforced by agencies wielding criminal punishments. Citing Husak, Professor Stephen L. Carter of the Yale Law School, like a hammer driving a nail head flush to a board, forcefully underscores the moral of this story:

Society needs laws; therefore it needs law enforcement. But “overcriminalization matters” because “making an offense criminal also means that the police will go armed to enforce it.” The job of the police “is to carry out the legislative will.” But today’s political system takes “bizarre delight in creating new crimes” for enforcement. And “every act of enforcement includes the possibility of violence.”

Carter continues:

It’s unlikely that the New York Legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.

Garner lived in part by illegally selling single cigarettes untaxed by New York jurisdictions. He lived in a progressive state and city that, being ravenous for revenues and determined to save smokers from themselves, have raised to $5.85 the combined taxes on a pack of cigarettes. To the surprise of no sentient being, this has created a black market in cigarettes that are bought in states that tax them much less. Garner died in a state that has a Cigarette Strike Force.

He lived and died in a country with 5 percent of the world’s population but 25 percent of its prisoners. In 2012, one of every 108 adults was behind bars, many in federal prisons containing about 40 percent more inmates than they were designed to hold.

Most of today’s 2.2 million prisoners will be coming back to their neighborhoods and few of them will have been improved by the experience of incarceration. This will be true even if they did not experience the often deranging use of prolonged solitary confinement, which violates the Eighth Amendment’s ban on “cruel and unusual punishments” and is, to put things plainly, torture.

The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism. This, like Eric Garner’s death, is a pebble in the mountain of evidence that American government is increasingly characterized by an ugly and sometimes lethal irresponsibility.

— George Will is a Pulitzer Prize–winning syndicated columnist. © 2014 The Washington Post

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What the Peanut Salmonella Case Teaches Us About Overcriminalization

Originally published at The National Review by Eli Lehrer | 9/22/14

Brothers Stewart and Michael Parnell — the company owner and buyer at the center of the salmonella-tainted peanut scandal that killed nine people in 2008 and 2009 — will both face long prison sentences following their convictions on federal charges last week. But the specific way that the brothers will face justice ought to raise some questions for anyone concerned about laws that have granted too much arbitrary power to courts and prosecutors. Quite simply, the Parnells are being prosecuted and sentenced for technical wrongs when their actual crime was much worse.

Food Safety News, a trade publication that provided the most knowledgeable and in-depth coverage of the trail, puts it simply: “At no point did the government charge the defendants with being responsible for the deaths or injuries that resulted from the outbreak.” The only issues heard in the Georgia courtroom involved lying on paperwork and shipping unsafe products.

Such things should obviously be illegal. That said, civil sanctions, administrative penalties, and fines can do far more to discourage firms from doing them than criminal charges. It’s easier to levy such penalties than it is to get a criminal conviction, and the tools available to civil authorities, such as the ability to close plants and seize goods, do more to protect the public than a criminal trial could. The existence of laws allowing for stiff jail sentences for what are essentially paperwork violations likely give prosecutors the power to lock up almost anyone in the food business. That’s more power than the government should have.

In particularly egregious cases of food-safety breaches — and the Parnells’ behavior was egregious — criminal charges are appropriate. But, in these cases, it’s much better and fairer to try malefactors for the harm they do rather than technical wrongs: In this case, with nine people dead and hundreds more made ill, state prosecutors could have easily charged both brothers with manslaughter and assault. The charges might have been a little harder to prove and the trial would have take place in a state court rather than a federal one. But such a process would do far more to serve the interests of justice. 

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Heritage Report: A Judicial Cure for the Disease of Overcriminalization

Originally published at The Heritage Foundation by Stephen F. Smith  | 8/21/14

A‌s issues of public policy go, few are as strange as overcriminal‌ization. Once largely the subject only of academic complaint, the problems associated with overcriminalization are now more widely understood. Major think tanks,[1] media outlets,[2] civil libertarian groups,[3] and legal professional associations[4] have shined a harsh light on the injustices that federal prosecutors have committed against people who had no reason to know their actions were wrongful, much less illegal.

These are not isolated cases of abusive prosecution; they take place from coast to coast and have ruined the lives and reputations of people who were like other law-abiding citizens except for their misfortune of having attracted the attention of an overzealous federal agent or prosecutor.[5] From left and right of political center to points in between, there is an impressive consensus that overcriminalization gravely threatens the liberty of ordinary citizens.

Nevertheless, reports of overcriminalization’s demise would be greatly exaggerated. Congress has repeatedly held hearings on the subject, and members of both parties have criticized the present state of affairs in which the law virtually “makes everyone a felon.”[6] Yet Congress has taken no action.

Even that bleak statement is too optimistic: Congress, while at times professing concern over the federalization of crime,[7] has continued to pass new federal criminal laws at a relentless pace. Congress has created an average of 56 new crimes every year since 2000, roughly the same rate of criminalization from the two prior decades.[8] This is no aberration. As Professor John Baker has noted, “for the past 25 years, a period over which the growth of the federal criminal law has come under increasing scrutiny, Congress has been creating over 500 new crimes per decade.”[9]

Much like the addict who repeatedly breaks promises to quit, Congress cannot seem to kick the overcriminalization habit. Some addicts eventually seek help through third-party “interventions,” but the federal courts, committed as they are to expansive views of congressional power to define crimes,[10] will not nudge Congress even to curb its reliance on overcriminalization, much less to quit cold turkey.

At this point, traditional critiques of overcriminalization hit a brick wall because overcriminalization is understood primarily in quantitative terms: the notion that there are too many criminal laws regulating too many activities. From this view, reform efforts depend entirely on Congress, which needs to narrow and repeal scores of federal criminal laws. Absent such legislative action, federal prosecutors will continue to have free rein to exploit the vagaries of federal law to charge and convict whomever they wish, regardless of how innocuous the accused’s behavior is.

Fortunately, there is another path to reform in this area, one that does not depend on congressional action (or heroic self-restraint by federal prosecutors). This path to reform is informed statutory interpretation in federal criminal cases. Legislative overuse and prosecutorial misuse of the criminal sanction need not go unchecked, as many judges seem to think. The courts themselves have an important role in defining crimes, a role that takes on even greater importance as Congress continues to default on its obligation to restrict criminal liability and penalties to sensible bounds.

Courts flesh out—and, more often than not, prescribein the first instance—the state of mind required for conviction. The state-of-mind, or mens rea, requirements are of vital importance in preventing morally undeserved punishment and guaranteeing the fair warning necessary to enable law-abiding citizens to avoid committing crimes. As important as the role of defining the mental element of criminal liability is, however, it is not the judiciary’s only role in this area. The courts also help to define criminal liability by interpreting ambiguous statutes, determining the meaning of laws in which Congress failed to make its intention entirely clear.

Once the important role of the federal judiciary in defining criminal liability is understood, there is greater cause for optimism about the prospect of finally reining in overcriminalization. The effort to persuade Congress to reverse course and exercise greater restraint and care in the use of criminal sanction is important and should continue. It is time, however, to broaden the conversation to include the one branch of the federal government—the judiciary—that is most likely to be receptive to long-standing complaints about overcriminalization. As we continue to await legislative reform, it is high time for courts to be part of the solution to overcriminalization instead of part of the problem.

The rest of this paper proceeds as follows. The first section seeks to reframe the typical discussion of overcriminalization in terms of the deeper problems stemming from the expansive body of federal criminal law. These problems, which stem fundamentally from poor crime definition, are ones that the federal courts helped to create and thus can remedy on their own without action by Congress. Although comprehensive legislative reform is ultimately needed, the reform effort can and should take place in federal courtrooms as well as in the chambers of Congress.

The second and third sections discuss the ways in which courts have worsened—and, by changing interpretive strategies, can counter—the adverse effects of overcriminalization through statutory interpretation.It is not “restraint” for courts to expand ambiguous federal criminal statutes and to water down mens rea requirements. To the contrary, it is “activism” and an abdication of the judiciary’s historic responsibility to promote due process and equal justice for all.

To be faithful to its role as a coequal branch of government, the federal judiciary should not be rubber stamps for the Department of Justice’s predictably expansive uses of federal criminal statutes. The judiciary should instead counteract the personal, political, and other considerations that often sway prosecutorial decision making with informed, dispassionate judgment about the proper scope of federal criminal laws in light of statutory text, legislative intent, and enduring principles of criminal law. The sooner federal judges get the message, the sooner overcriminalization’s days will be numbered and the court system can resume the business of dispensing justice instead of merely punishment.

Overcriminalization Defined

As the term implies, critiques of overcriminalization posit that too many criminal laws are on the books today and, relatedly, that existing criminal prohibitions are too broad in scope. This standard view of overcriminalization is quantitative in that it bemoans the number of criminal laws on the books and the amount of activity that is deemed criminal.

Arguments that there is too much criminal law typically stress the fact that new criminal laws are continuously added to the books, even when crime rates are low or falling, and that the expansion often involves “regulatory” offenses. Such offenses punish conduct that is mala prohibita, or wrongful only because it is illegal, and may allow punishment where “consciousness of wrongdoing be totally wanting.”[11] With the continued proliferation of regulatory offenses, conduct that in prior generations might have resulted only in civil fines or tort liability (if that) is now subject to the stigma and punishment of criminal law.[12]

Although the quantitative view tends to dominate discussions of overcriminalization, it is unsatisfying on its own terms. While such frequent use of the criminal sanction, especially during election years and times when crime rates are low or falling, may suggest that Congress is legislating for reasons other than legitimate public-safety needs, new criminal legislation might be used, for example, to signal voters that its proponents are “tough” on crime.[13] Alternatively, steady expansion in the reach of federal crimes might signify that Congress does not see (or simply does not care much about) potential misuse of increasingly broad prosecutorial authority.[14]

Still, a broad, constantly expanding criminal code need not jeopardize individual liberty or mete out morally undeserved punishment. If the prohibitions and penalties are carefully tailored to appropriate offenses and offenders, a large, expanding code can operate as justly as a code that is smaller and more targeted in its reach. For this reason, the quantitative objection to overcriminalization is, without more, incomplete.

The quantitative objection implies a deeper, qualitative objection to overcriminalization in that overcriminalization tends to degrade the quality of the criminal code, producing unjust outcomes. For example, a code that is too large and grows too rapidly will often be poorly organized, structured, and conceived. The crimes may not be readily accessible or comprehensible to those who are subject to their commands. Moreover, a sprawling, rapidly growing criminal code likely contains inadequately defined crimes—crimes, for example, in which the conduct (actus reus) and state of mind (mens rea) elements are incompletely fleshed out, giving unintended and perhaps unwarranted sweep to those crimes.

The number and reach of criminal laws may be symptomatic of a broken criminal justice system, but the poor quality of the criminal code and the resulting mismatch between moral culpability and criminal liability are the disease.

Overcriminalization as a (Partially) Self-Inflicted Judicial Wound

Once overcriminalization’s qualitative aspects are understood, it becomes evident that the blame for overcriminalization cannot be laid entirely at Congress’s doorstep. Regrettably, the courts have played the overcriminalization game with Congress and the Department of Justice. They have done so by expansively interpreting ambiguous criminal statutes in derogation of the venerable “rule of lenity” and by not insisting on mens rea requirements robust enough to rule out morally undeserved punishment. Both of these interpretive failures have made federal criminal law even broader and more punitive.

Expansive Interpretations as Judicial Crime Creation. It is often said that courts do not “create” federal crimes, but that simply is not the case. When courts expand the reach of ambiguous criminal laws (laws which, by definition, can reasonably be read to include or exclude the defendant’s conduct), they are essentially creating crimes. They are determining for themselves, within the broad bounds of the terms of an ambiguous statute, whether the defendant’s conduct should be condemned as criminal, and they are doing so after the fact, without prior warning to the defendant charged with a violation. To allow citizens to be convicted and imprisoned based on such judicial determinations transforms federal criminal law into what one scholar has described as “a species of federal common law”[15]—a result fundamentally at odds with the principle that in a democracy, the criminalization decision is reserved for legislatures.[16]

The root of the problem is that the courts are notoriously inconsistent in adhering to the rule of lenity. The rule of lenity requires a court to construe ambiguous criminal laws narrowly, in favor of the defendant,[17] not to show lenience to lawbreakers, but to protect important societal interests against the many adverse consequences that the judicial expansion of crimes produces. These consequences include judicial usurpation of the legislative crime-definition function, not to mention potential frustration of legislative purpose and unfair surprise to persons convicted under vague statutes. The rule of lenity therefore reflects, as Judge Henry Friendly memorably said, a democratic society’s “instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.”[18]

More to the point, faithful adherence to the rule of lenity would require courts to counteract overcriminalization. The rule would require courts to narrow the scope of ambiguous criminal laws, adopting expansive interpretations onlyif compelled by the statutory text. This would prevent prosecutors from exploiting the ambiguities of poorly defined federal crimes either to criminalize conduct that Congress has not specifically declared to be a crime or to redefine—or ratchet up the penalty for—crimes dealt with more specifically in other statutes. The rule of lenity would thus make poor crime definition an obstacleto—not a licensefor—more expansive applications of federal criminal law, remitting prosecutors seeking more enforcement authority to the democratic process, not an unelected, unaccountable judiciary.

Regrettably, the federal courts treat the rule of lenity with suspicion and, at times, outright hostility. While sometimes faithfully applying the rule of lenity, the Supreme Court has frequently either ignored lenity or dismissed it as a principle that applies only when legislative history and other interpretive principles cannot give meaning to an ambiguous statute.[19] Indeed, the federal courts disregard the rule of lenity so frequently that it is questionable whether the rule of lenity can still be accurately described as a rule. As I have previously stated:

[T]he courts’ aversion to letting blameworthy conduct slip through the federal cracks has dramatically reversed the lenity presumption. The operative presumption in criminal cases today is that whenever the conduct in question is morally blameworthy, statutes should bebroadlyconstrued, in favor of the prosecution, unless the defendant’s interpretation is compelled by the statute…. The rule of lenity, in short, has been converted from a rule about the proper locus of lawmaking power in the area of crime into what can only be described as a “rule of severity.”[20]

The results of the judiciary’s haphazard adherence to the rule of lenity are as predictable as they are misguided. Federal judges have repeatedly used ambiguous statutes as a basis for creating new federal crimes.[21] They have also expanded the reach of overlapping federal crimes to drive up the punishment that Congress prescribed for comparatively minor federal crimes.[22] The end result of such assaults on the rule of lenity is necessarily a broader and more punitive federal criminal law—a worsening of overcriminalization rather than an improvement.

Inadequate Mens Rea Requirements. The courts have done better—but only slightly—in fleshing out the state-of-mind, or mens rea, requirements for federal criminal liability. As the Supreme Court explained in Morissette v. United States,[23] the concept of punishment based on acts alone without a culpable state of mind is “inconsistent with our philosophy of criminal law.” In our system, crime is understood as a “compound concept,” requiring both an “evil-doing hand” and an “evil-meaning mind.”[24]

The historic role of the mens rea requirement is to exempt from punishment those who are not “blameworthy in mind” and thereby to limit punishment to persons who disregarded notice that their conduct was wrong.[25] Mens rea also serves to achieve proportionality of punishment for blameworthy acts, ensuring that the punishment the law allows “fits” the crime committed by the accused. Mens rea, for example, guarantees that the harsher penalties for intentional homicides will not be applied to accidental homicides.[26]

Despite the critical importance of mens rea to the effectiveness and legitimacy of federal criminal law, federal crimes often lack sufficient mens rea elements. Many federal crimes, including serious crimes, contain no express mens rea requirements.[27] Perhaps more commonly, federal crimes include express mens rea requirements for some element of the crime but are silent as to the mens rea (if any) required for the other elements.[28] Here it is evident that Congress intended to require mens rea but unclear whether Congress intended the express mens rea requirement to exclude additional mens rea requirements. In still other situations, even when Congress includes mens rea terms in the definition of crimes, it uses terms such as “willfully” and “maliciously” that have no intrinsic meaning and whose meaning varies widely in different statutory contexts.[29]

This confusing state of affairs might be acceptable if the courts employed a consistent method of mens rea selection. However, the courts have been inconsistent in their approach to mens rea questions. On occasion, the Supreme Court stands ready to read mens rea requirements into statutes that are silent in whole or in part as to mens rea because the Court has an interest in making a morally culpable state of mind a prerequisite to punishment.[30] This, however, is not invariably so.

Sometimes, courts treat legislative silence concerning mens rea as a legislative signal to dispense with traditional mens rea requirements, especially with respect to regulatory crimes protecting the public health, safety, and welfare. Even Morissette v. United States, with its strong emphasis on the usual requirement that a culpable mental state is a prerequisite to punishment, conceded that the requirement may not apply to regulatory or other crimes not derived from the common law.[31] The Court seized on this statement in United States v. Freed[32] as justification for treating a felony punishable by 10 years in prison as a regulatory offense requiring no morally culpable mental state.

To be sure, more recent cases cast doubt on Morissette and Freed in this respect. Among these cases are Arthur Andersen LLP v. United States,[33] Ratzlaf v. United States,[34]and Staples v. United States.[35] In each case, the Supreme Court adopted heightened mens rea requirements, and Arthur Andersen and Ratzlaf went so far as to make ignorance of the law a defense.[36] Each time, the Court ratcheted up mens rea requirements for the stated purpose of preventing conviction for morally blameless conduct.

These cases, I believe, are best read as making a culpable mental state a prerequisite for punishment for all crimes, even regulatory offenses. As I have explained elsewhere:

[T]he Supreme Court has dramatically revitalized the mens rea requirement for federal crimes. The “guilty mind” requirement now aspires to exempt all “innocent” (or morally blameless) conduct from punishment and restrict criminal statutes to conduct that is “inevitably nefarious.” When a literal interpretation of a federal criminal statute could encompass “innocent” behavior, courts stand ready to impose heightened mens rea requirements designed to exempt all such behavior from punishment. The goal of current federal mens rea doctrine, in other words, is nothing short of protecting moral innocence against the stigma and penalties of criminal punishment.[37]

The fact remains, however, that Freed and cases like it have never been overturned. Unless that happens, confusion will persist, as will the possibility that a culpable mental state may not be required for some crimes, especially regulatory offenses involving health and safety concerns.

One thing, however, is certain: As long as courts fail to make proof of a culpable mental state an unyielding prerequisite to punishment, federal prosecutors will continue to water down mens rea requirements in ways that allow conviction in excess of blameworthiness. That is exactly what prosecutors did in Arthur Andersen during the wave of post-Enron hysteria over corporate fraud. In seeking to convict Enron’s accounting firm of the “corrupt persuasion” form of obstruction of justice, prosecutors—flatly disregarding the lesson of cases like Staples and Ratzlaf—argued for incredibly weak mens rea requirements that, as the Court noted, would have criminalized entirely innocuous conduct.[38]

Although the Supreme Court unanimously rejected the Justice Department’s efforts and overturned Arthur Andersen’s conviction, the firm has less cause to celebrate than one might think. After being convicted on a prosecution theory so aggressive that it could not win even a single vote from the Justices, the firm—once a Big Five accounting firm—went out of the consulting business. Even now that it no longer stands convicted of a crime, its reputation has likely been damaged beyond repair. Its own conduct in the Enron matter had a lot to do with that, of course, but so did the overzealousness of federal prosecutors in exploiting the serious imperfections in federal mens rea doctrine. The Arthur Andersen episode simultaneously shows the need for substantial mens rea reform and the high cost of not having strong mens rea requirements.

The Judicial Path to Overcriminalization Reform

Given that overcriminalization has qualitative components—for which courts themselves bear a large share of the blame—courts can be part of the solution instead of part of the problem. Even if Congress and federal prosecutors continue their unrestrained use of the criminal sanction, courts are not powerless to act.

The solution is for courts to interpret statutes in ways that rectify the qualitative defects that overcriminalization produces in a body of criminal law as sprawling and poorly defined as federal criminal law is. New interpretive strategies, tailored to the troubling realities of a criminal justice system characterized by rampant overcriminalization, can help to right this fundamental wrong in federal criminal law.[39]

Statutory construction, of course, has its limits and cannot be used to defeat the operation of statutes that plainly encompass the defendant’s conduct. In cases such as these, courts should apply the statutes as written, barring some constitutional infirmity, but even here courts can exercise informed discretion to counteract abusive exercises of prosecutorial discretion.

After United States v. Booker,[40] district judges have wide sentencing discretion, and they can and should use that discretion to show suitable lenience toward sympathetic defendants. The President can also use his power to grant pardons or commute sentences—as President Barack Obama recently did to free eight prisoners serving unduly long drug sentences in the wake of the Fair Sentencing Act of 2010[41]—to do justice toward defendants who were unfairly convicted or sentenced.[42] Although these important safeguards for the sound administration of criminal justice should not be overlooked, this paper focuses on how courts can interpret criminal statutes to counteract the effects of overcriminalization.

Restoring the Rule of Lenity to Its Rightful Place. In light of how often courts interpret criminal statutes expansively, it should be clear that they do not simply let the weights in the interpretive scales determine whether statutes are to be read broadly or narrowly, as academic critics of lenity would have them do.[43] Instead, the balance is heavily skewed in favor of the prosecution when the conduct in question is morally blameworthy, even when a broad interpretation allows prosecutors to drive up considerably the punishment that would otherwise apply or to evade limitations that the legislature included in the definition of the crime in more specific statutes.

Whether the law enforcement need for expanded authority is real,[44] minimal,[45] or just silly,[46] the one constant seems to be that courts will go to almost any lengths to keep blameworthy conduct from slipping through the federal cracks. Thus, it is closer to the truth to say that the operative interpretive rule in federal criminal cases is severity: that ambiguous statutes presumptively should be construed broadlyto prevent culpable defendants from slipping through the federal cracks.

In practice, then, rejecting the rule of lenity tends to look a lot like endorsing anti-lenity (or a rule of severity). That, in turn,affords a substantial justification for taking lenity seriously, even if, as a theoretical matter, an evenhanded approach to the interpretation of criminal statutes might be preferable to a strict-construction default. After all, even critics of lenity do not contend that criminal laws should always be interpreted broadly, recognizing that sometimes courts should narrow the reach of criminal statutes.[47]

The obvious assumption is that there is a viable interpretive middle ground between the lenity side of the spectrum (in which ambiguous statutes are always construed narrowly) and the anti-lenity or severity side of the spectrum (in which such statutes are always construed broadly). This assumption is quite difficult to reconcile with the courts’ rather checkered track record in interpreting federal crimes.[48] Given that courts often miss valid reasons for narrowly construing statutes, a consistently applied rule of lenity under which every ambiguous criminal statute is read narrowly is the right interpretive rule.

The political economy of criminal law confirms that lenity is the right interpretive default. The relevant question is which interpretive rule would give Congress proper incentives to make its intentions clear concerning the scope and meaning of criminal statutes. To the extent that legislatures generally share prosecutors’ desire for broad criminal prohibitions,[49] a rigidly enforced rule of lenity would operate as an information-forcing default rule, giving Congress added incentives to make its wishes known ex ante.

Additionally, once an ambiguity arises in particular settings, as it often does, the question is whether the Department of Justice or groups favoring criminal justice reform are in the best position to convince Congress to pass new legislation resolving the interpretive question. The Justice Department—the 800-pound gorilla in federal criminal law—is undoubtedly best suited to the task of overcoming legislative inertia. As Professor Einer Elhauge explains, “there is no effective lobby for narrowing criminal statutes,” whereas “an overly narrow interpretation is far more likely to be corrected…because prosecutors and other members of anti-criminal lobbying groups are heavily involved in legislative drafting and can more readily get on the legislative agenda.”[50] Strict adherence to the rule of lenity would thus put the burden of overcoming legislative inertia on the shoulders of the party in the best position to persuade Congress to act.

Finally, a reinvigorated rule of lenity would promote the more effective operation of prosecutorial restraint. When courts stand ready to expand ambiguous criminal laws to keep blameworthy offenders from slipping through the cracks in federal criminal law, prosecutors can safely “push the envelope” and stretch vague laws to their outer limit. As long as they target blameworthy offenders—and, disturbingly, even if they do not[51]—prosecutors can be confident that courts will ratify their broad readings of criminal laws.

Lenity would dramatically change the calculus by lowering the prosecution’s likelihood of conviction, giving prosecutors greater incentives to decline prosecution in cases of blameless or marginally blameworthy offenders potentially guilty only of hypertechnical, victimless crimes—the kind of offenders who tend to become ensnared in the overcriminalization net. The administration of justice in federal prosecutions, therefore, would vastly improve if federal courts started taking the rule of lenity seriously.

Proportionality-Based Approaches to Statutory Construction. If federal judges remain fickle in their adherence to the rule of lenity despite its obvious advantages, they should at least take into account the potential sentencing consequences before expanding the reach of a criminal statute. This inquiry would require courts to look past the facts of the cases before them, hypothesize the range of potential applications of the statute,[52] and pay close attention to the penal consequences of an expansive interpretation. In cases in which an expansive interpretation would threaten to visit disproportionate punishment on convicted offenders, as determined against the baseline of other criminal laws (state or federal) proscribing the same criminal act, a narrow reading is the appropriate response unless the statute’s plain meaning commands a broader interpretation.[53]

Proportionality considerations should also be factored into mens rea selection. The Supreme Court should repudiate the notion that avoiding conviction for morally blameless conduct is the only goal of mens rea doctrine.[54] A separate, equally vital and proper concern of mens rea doctrine is to ensure that the sanctions available in the event of conviction will be proportional to the blameworthiness of convicted offenders.[55]

Imposing punishment in excess of blameworthiness is just as offensive in principle as convicting blameless conduct: Either way, courts are imposing punishment that is not justified by the culpability of the offender and gambling with the moral credibility of the criminal law. Crimes for which Congress has prescribed severe penalties should require correspondingly high levels of mens rea so that offenders will be seriously blameworthy. Only then will convicted offenders be morally deserving of the stiff penalties that federal law affords.

Reinvigorate Mens Rea Requirements. Finally, courts should substantially overhaul federal mens rea doctrine. Quite simply, the doctrine is in dire need of reform both in its underlying theory and in its operational details. For the stated purpose of preventing punishment for morally blameless (or “innocent”) conduct,[56] the Supreme Court has made “innocence protection” the driving force in mens rea selection. Heightened mens rea requirements can and should be imposed where (and onlywhere) a federal criminal statute would otherwise potentially reach morally blameless conduct.[57]

In addition to making disproportionate punishment a proper concern of mens rea doctrine, courts should free the prevailing federal method of selecting mens rea from the shackles that prevent it from achieving its important goal of aligning punishment and blameworthiness. Once courts detect a potential innocence-protection problem—understood not just as the potential for punishment of blameless acts, but also as disproportionate punishment for blameworthy acts—the courts should impose whatever heightened mens rea requirement is necessary to limit punishment in accordance with blameworthiness. In doing so, courts should not be at all reluctant to require, where necessary to avoid morally undeserved punishment, prosecutors to prove knowledge that the defendant knew his conduct was illegal.

This more robust mens rea doctrine could be the single most important contribution the courts could make to avoiding the qualitative problems associated with overcriminalization. Overcriminalization horror stories typically involve prosecutors using obscure regulatory laws as traps for unwary citizens who are understandably unaware either of the existence or the meaning of the law in question.[58] To the extent that judges start demanding proof in these cases, not only of the facts that make the defendants’ conduct illegal, but also of the defendants’ knowledge that they were breaking the law, prosecutors could no longer count on guilty pleas or guilty verdicts.

The effect would not simply prevent unjust punishment, although that is a worthy goal in its own right. It would also give the federal government much-needed incentives either to give the regulated public notice that such obscure crimes exist, thereby enabling itself to prove knowing illegality, or, as one scholar helpfully suggests,[59] to use administrative or civil enforcement mechanisms in place of criminal prosecutions to achieve the government’s regulatory goals. In a free society, criminal prosecution—the most coercive and stigmatizing exercise of governmental authority—should be a last resort, reserved for cases in which the government’s legitimate regulatory goals cannot otherwise be achieved.

Conclusion

As this brief survey of federal criminal law has shown, overcriminalization is a serious problem in the federal system and more generally for American criminal law. The number and scope of criminal laws, however, is only the tip of the iceberg. Ultimately, overcriminalization is so problematic because it tends to degrade the quality of criminal codes and result in unwarranted punishment, jeopardizing the quality of justice the system generates. While overcriminalization is the order of the day in the federal system, rendering the legislature no longer supreme in matters of crime and punishment, it is ultimately prosecutors who exploit incompletely defined crimes and the redundancy of the criminal code to expand the scope of their enforcement power and ratchet up the punishment that convicted defendants face.

As judges decry this state of affairs and scholars hope against hope for bold legislative or constitutional solutions, they have missed something critical. Given that the federal courts helped to make federal criminal law as broad and punitive as it is, there is a ready solution to overcriminalization’s many problems short of legislative self-restraint or judicial activism in the name of the Constitution.

The solution is for federal judges to approach their vital interpretive functions with keen sensitivity to the many adverse effects that overcriminalization and the courts’ current, self-defeating interpretive strategies create for federal criminal law. If courts cease giving unwarranted scope to ambiguous criminal laws and redouble their efforts to use mens rea requirements to rule out morally undeserved punishment—understood not merely as punishment for blameless acts, but also as disproportionately severe punishment for blameworthy acts—overcriminalization need not be the disaster that so many with good cause believe it to be.

—Stephen F. Smith is Professor of Law at the University of Notre Dame.

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How Destroying Fish Is Not Destroying Financial Records

Originally published at Cato Institute by Trevor Burrus | July 10 2014

Case: Yates v. US

Overcriminalization is a significant problem in the United States, particularly federal overcriminalization. There are a variety of reasons for this, but one is that federal prosecutors consistently stretch laws to encompass conduct that the law was never meant to cover. Normal people who committed minor infractions will often find themselves facing long prison sentences that are entirely disproportionate to the wrongness of the act. Such is the case in an upcoming Supreme Court case, Yates v. United States. 


While commercial fishing in the Gulf of Mexico, John Yates had his catch inspected by the Florida Fish and Wildlife Commission for whether it complied with size restrictions. Finding some undersized fish, officials cited him for a civil violation and he was ordered to bring the undersized fish back to the docks. Instead, he threw them overboard. While he probably knew he would face a fine, what he could not have foreseen was his subsequent criminal prosecution under the Sarbanes‐​Oxley Act three‐​years later.


Sarbanes‐​Oxley was enacted in the wake of the Enron financial scandal and cover‐​up. It includes a document shredding provision, Section 1519, that punishes those who knowingly destroy or conceal “any record, document, or tangible object” in order to impede an investigation. To Mr. Yates’s surprise, he was convicted of violating Section 1519 and sentenced to 30 days in prison and three years of supervised release. On appeal, the Eleventh Circuit upheld his conviction by narrowly focusing on the dictionary definition of “tangible object.”


Now, on appeal to the Supreme Court, Mr. Yates asks the Court to overturn his conviction on the ground that he did not have fair notice that the destruction of fish would fall under Section 1519. We agree. In an amicus brief supporting Mr. Yates, Cato argues that well‐​established canons of statutory construction—that is, the rules that guide judges in interpreting statutes—do not allow Section 1519 to be reasonably interpreted to apply to fish. Those canons teach us that a word in a statute, such as “tangible,” should be given more precise content based on its surrounding words, and that it should only be applied objects similar to the precise words preceding it. In short, the other words in the statute, such as “record” and “document,” modify the term “tangible object” to include things like hard drives and diskettes, not fish.


Moreover, an all‐​encompassing reading of “tangible object” would render the words “record” and “document” unnecessary. Additionally, the broader context of the Sarbanes‐​Oxley Act illuminates the meaning of “tangible object.” The Act focuses on financial fraud in the context of companies, not destroying fish. Thus, the words “tangible object” should be read differently in Sarbanes‐​Oxley than they would be in, say, the Federal Rules of Criminal Procedure. If the term “tangible object” is read as broadly as the Eleventh Circuit’s interpretation, it could potentially criminalize an unfathomable range of activities. As such, it would not provide adequate notice to those who may violate the law. Individuals have a right to fair notice of what conduct is proscribed by the law so they may plan their actions accordingly. Legislatures, not courts, should define criminal activity.


Read Cato’s brief here. 

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Heritage Report: The Extent of America’s Overcriminalization Problem

Originally published at The Heritage Foundation by Paul Larkin Jr | 5/9/14

The Heritage Foundation and others have criticized the modern-day phenomenon known as “overcriminalization,”[1] the neologism given to the overuse and misuse of the criminal law.[2] Those criticisms have taken several forms: Legislatures pass too many statutes creating crimes (especially federal offenses); legislatures too frequently empower administrative agencies to define crimes or otherwise “fill in the blanks” in laws that can be enforced through the criminal process; legislatures too often define offenses with inadequate mens rea or scienter (“guilty mind”) requirements; and legislatures too often increase penalties for existing crimes simply to make it look as though they have done something to reduce crime.[3]

Some claim that the critics of overcriminalization are making a mountain out of a molehill.[4] The criminal justice system has expanded its reach over time as new social and economic concerns justify new forms of regulation and new justifications emerge for using the criminal process to enforce different regulatory regimes. That expansion creates the possibility that certain individual prosecutions may be unjustified. If the number of instances of overuse or abuse of the criminal process is small, however, the problem may not be as large a concern as critics of overcriminalization claim.

At first blush, statistics seem to support the argument that critics of overcriminalization are overstating the extent of the problem. More than 90 percent of recent federal prosecutions were for crimes not subject to any overcriminalization criticism. The U.S. Sentencing Commission noted that in 2012, 32.2 percent of all federal criminal prosecutions were for immigration law violations, 30.2 percent were for controlled substance crimes, 10.5 percent were for fraud, 9.8 percent were for firearms violations, 3.5 percent were for non-fraud white-collar crimes, 2.4 percent were for child pornography offenses, and 1.7 percent were for larceny cases.[5] The “Other” category is just 9.7 percent and includes traditional crimes such as assaults on federal officials. The result, the argument concludes, is that there is little room left for an overreaching federal criminal justice system.

That argument, while facially reasonable, is unpersuasive.

The Only Party That Could Know the Full Extent of Overcriminalization—the U.S. Justice Department—Cannot Be Expected to Collect Examples of Its Own Unjust Prosecutions

The extent of the problem is difficult to determine and may be worse and more insidious than some might think. No agency in the legislative, executive, or judicial branches collects statistics about overcriminalization. Neither the U.S. Sentencing Commission nor the Federal Judicial Conference has the charter to identify all cases of unjust prosecutions, and the individual members of the federal bench lack the ability to collect such data on a nationwide basis.

The U.S. Department of Justice, of course, has no interest in identifying instances in which it or one of the U.S. Attorney’s Offices should not have brought criminal charges against someone. This is true for two simple reasons: (1) Many overzealous prosecutors might not acknowledge or even recognize instances of overcriminalization, and (2) 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.[6]

Notable Examples of Injustices

There are several prominent examples of the misuse of the criminal justice system.

  • Abner Schoenwetter, for example, spent six years in a federal prison for importing Honduran lobsters that were packed in plastic—as opposed to cardboard—boxes and for supposedly violating a Honduran regulation (later declared invalid by the Honduran Attorney General) that made his lobsters marginally too small.
  • The federal government pursued a criminal investigation of the Gibson Guitar Company for importing wood for guitar frets that allegedly was exported illegally from India and Madagascar in violation of those nations’ laws—which, in the case of Madagascar, were not even written in English. In other words, the federal government claimed that Gibson Guitar was guilty of a federal crime in this country because it did not know the law of a foreign nation.
  • Lawrence Lewis, a building engineer, wound up charged with a felony and pleaded guilty to a misdemeanor for following the procedure he had been instructed to use to clean up toilet overflows at a military retirement home that, totally unbeknownst to him, wound up shunting the refuse into the Potomac River.[7]

Prosecutions such as these deprive the criminal law of the respect it needs to secure public support. That is particularly true if, as social science suggests, people generally follow the law if they respect it, not because they fear it.[8]

Each Injustice Matters

The argument that the concern with overcriminalization is overstated essentially reduces to claiming that because more than 90 percent of federal prosecutions are for classic federal crimes, overcriminalization is not a problem. These isolated instances of injustice, the argument goes, do not justify the commitment of time and effort necessary to fundamentally re-examine the criminal law:

There may be one or two extreme cases here and there where a prosecutor has exercised poor judgment and has charged someone who may have technically violated a regulatory law, but truly is morally blameless, utterly contrite, and completely harmless. A few mistakes here and there, however, do not justify tarring the entire criminal process or treating every police officer as a modern-day Inspector Javert.[9]

That defense of the status quo, however, is inconsistent with the long-standing axiom, drawn from the Bible,[10] that “It is better that ten guilty men go free than that one innocent man be convicted.”[11] As the Rev. Martin Luther King, Jr., wrote in his famous letter from the Birmingham jail, “Injustice anywhere is a threat to justice everywhere.” Society should not ignore known injustices just because they may be few in number. Rather, society should correct such errors, especially when their number is small, because we can no longer, and should not have to, rely on the clemency process to rectify them.[12]

Numerous Respected Individuals and Organizations Are Troubled by the Injustices of Overcriminalization

A large and growing number of highly respected figures believe that overcriminalization in fact is a serious problem. Former senior Justice Department officials have been vocal critics of overcriminalization.[13] An American Bar Association task force created to examine the issue released a report denouncing this phenomenon.[14] Numerous members of the academy have written about the problem.[15] Several law schools have held symposia to highlight the issue.[16] The media have expressed interest in the problem.[17] The House Judiciary Committee not only has held hearings on overcriminalization,[18] but also has chartered a task force to examine this matter.[19] Organizations from across the political spectrum—The Heritage Foundation and the ACLU, the Manhattan Institute and National Association of Criminal Defense Lawyers, the Texas Public Policy Foundation and Families Against Mandatory Minimums—that ordinarily do not hold the same public policy views all oppose overcriminalization.[20]

This widespread concern, voiced by important figures in the policymaking process representing very different viewpoints, justifies the belief that the problem is a systemic flaw in the criminal justice system and is not limited to isolated instances of legislative or prosecutorial overreaching.

Congress Should Act Now—Before the Federal Criminal Code Grows Even Further

The increasing use of criminal laws as regulatory penalties amplifies the risk that people, especially those who own or manage small businesses, may be deterred from pursuing legitimate activities due to the fear that they could commit a crime by unwittingly crossing one of the many obscure lines drawn by statutes, regulations, and ordinances. As Professor Douglas Husak has noted, among the harms caused by a large, prolix criminal code are “the freedom-limiting, anxiety-producing, and guilt-inducing effects the criminal law may have on those who take its demands seriously, even apart from the threat of punishment.”[21]

The criminal law serves a reasonable purpose when it deters individuals from approaching the line between lawful and illegal conduct—if the activity being regulated is inherently dangerous and the tort system cannot serve its traditional compensatory and deterrent functions.[22] Yet the criminal law often is used not as a necessary substitute for the tort system or as a means of enforcing traditional notions of blameworthy conduct, but as a means of protecting some favored interests over others.[23]

The public is ill-served when the criminal law is used to reduce competition rather than to promote it.[24] Cases where parties are deterred from socially beneficial activities will not show up in reported decisions discussing overcriminalization because, by definition, the affected parties will have avoided taking the risk of criminal prosecution. But it is precisely because the criminal law can have an overbroad deterrent effect that Congress should not wait until this problem worsens before remedying it.[25]

Conclusion

The only party with the ability to produce statistics on the prevalence of overcriminalization is the Justice Department, and, realistically speaking, it cannot be expected to collect accurate or complete statistics illustrating how often it has unjustifiably filed criminal charges. But the absence of proof is not proof of the absence of this problem. Numerous respected individuals and organizations, including several former high-level Justice Department officials, believe that overcriminalization is sufficiently widespread that it merits Congress’s attention and remediation. It also is clear that overcriminalization has occurred in particular cases because of flaws in criminal statutes.

Overcriminalization undeniably is a serious problem in every case in which it occurs. Congress should get to the bottom of this problem and adopt reasonable remedies to prevent injustices from reoccurring.—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Yaniv Nahon and Morgan Bennett, members of the Young Leaders Program at The Heritage Foundation, provided valuable research assistance for this paper.

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Manhattan Report: The Shadow Lengthens

Originally published at Manhattan Institute by Isaac Gorodetski James R. Copland | 2/25/14

The last ten years have seen the emergence of a new approach to business regulation and prosecution of wrongdoing in the United States. The U.S. Department of Justice now regularly enters into “deferred prosecution” or “non-prosecution” agreements (DPAs or NPAs) with large corporations, in which companies are paying billions of dollars in fines annually without trial. These agreements are presented as steps short of prosecution of corporations, a step that might drive firms into bankruptcy and disrupt their economic sectors. At the same time, a good case can be made that these agreements suffer from a lack of transparency. Questions naturally arise as to whether attorneys working for the federal government, with minimal to no judicial oversight, are best positioned to change significantly the business practices of individual companies and, indeed, entire industries.

Businesses prefer to enter into DPAs or NPAs rather than face trial, even when the costs of such arrangements are severe, because of the significant capital-market pressures stemming from criminal inquiries (including depressed stock prices and impaired credit) as well as the statutory and regulatory consequences flowing from indictment or conviction—for example, exclusion from government reimbursement or contracts, or the retraction of government licenses vital to a company’s operation. Prosecutors, in turn, prefer to avoid the risk and cost of trial as well as the potentially severe collateral consequences that indictment or conviction can impose on corporate stakeholders, including employees and creditors, as witnessed in the collapse of the large accounting firm Arthur Andersen following its 2002 federal indictment—which was ultimately set aside by the U.S. Supreme Court.

Thus, such arrangements have become commonplace, so much so that they might be characterized as a “shadow regulatory state” over business. The federal government has reached 278 DPAs and NPAs with businesses since 2004, with ten of the Fortune 100 companies operating under such agreements just since 2010. Although the federal government entered into only 17 DPAs and NPAs from 1993 through 2003, it entered into 66 in just the last two years, in which almost $12 billion in total fines and penalties were imposed. Companies in the finance and health-care sectors have been particularly likely to wind up under such agreements, with the finance sector accounting for 13 DPAs and NPAs and the health-care sector accounting for 8 of them in 2012–13. The reach of federal prosecutorial agreements has not stopped at America’s shores: the Department of Justice has asserted authority over hosts of foreign businesses—in some cases, for alleged conduct occurring completely outside the United States.

DPAs and NPAs are notable in that they impose terms on companies that go beyond the fines or incarceration normally associated with criminal punishment and because they go beyond requiring that the companies correct the specific practices alleged to be violations of the law. Instead, these agreements often call for major changes in firms’ internal processes of many types—from training to human resources—based on the apparent assumption that absent such changes, wrongdoing will be more likely to recur. Under DPAs and NPAs, companies have agreed to modify preexisting business practices significantly, by:

  • Implementing training and reporting programs;
  • Changing compensation schemes;
  • Modifying sales and marketing plans;
  • Hiring new, senior “compliance officers” as well as independent “monitors” reporting to the prosecutor; and
  • Firing key personnel, including directors or chief executives.

In many cases, the alleged predicate offenses underlying DPAs or NPAs involve ambiguous facts or strained or novel interpretations of law—interpretations that have remained untested in court, given companies’ pronounced pressure to settle. In addition, DPAs and NPAs regularly cede to prosecutors the sole discretion to determine whether companies are in breach of the agreement’s terms, without judicial oversight or the possibility of appeal.

This report focuses on DPAs and NPAs reached in 2012 and 2013 between prosecutors and four companies: Ralph Lauren, GlaxoSmithKline, Royal Bank of Scotland, and HSBC. These arrangements highlight companies’ difficulty in avoiding potential prosecution, even when they self-report potential violations discovered through robust internal compliance programs. They also highlight the broad social consequences of federal prosecutors’ quasi-regulatory decisions, which include:

  • Limiting companies’ ability to communicate truthful information to the public about pharmaceuticals, with potential life-or-death consequences;
  • Directly influencing trading practices and corporate speech relating to key interest rates and other global financial variables; and
  • Prompting companies to withdraw from developing countries, thus reducing capital formation and opportunity for the world’s poorest populations.

The U.S. practice of entering into DPAs and NPAs with corporations remains anomalous: corporate prosecutions are disfavored or impermissible in other developed nations. In 2013, however, the United Kingdom passed new legislation—the Crime and Courts Act, which introduced DPAs to the British criminal justice system beginning in February 2014. In contrast to U.S. practice, the U.K. rules limit the scope of corporate conduct subject to such arrangements and clearly delineate a transparent process that prosecutors must follow in pursuing DPAs, with significant judicial oversight. The new British rules bear watching as they are implemented, and they offer a potential blueprint for reforming American practice.

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When Ignorance is an Excellent Excuse

Originally published at National Review by Evan Bernick | 1/13/14

Bouie v. City of Columbia

It’s time for our lawmakers to end overcriminalization.

In the wake of media reports that 40,000 new federal, state, and local laws will go into effect this year, there’s no better time for Americans to revisit the old maxim that “ignorance of the law is no excuse.” An unknown number of these new provisions are criminal laws that can deprive us of our liberty and brand us for life. No ordinary American can be expected to know every law, new and old, on the books, not even every criminal law. Anyone concerned about Americans’ being locked up for innocent behavior should resolve to help end overcriminalization.

Overcriminalization strikes at the heart of our constitutional order. In Bouie v. City of Columbia the U.S. Supreme Court explained the constitutional doctrine of “fair notice,” which holds that a criminal law “must give warning of the conduct it makes a crime.” Traditionally, this requirement was satisfied if (1) the prohibited act was inherently wrongful — such as murder, arson, theft, robbery, or rape — or (2) an individual did something that he or she knew was illegal, even if it was not inherently wrongful.

#ad#In recent years, though, federal, state, and local laws that do not meet either requirement but carry criminal penalties have proliferated. Exacerbating the problem, as noted by Ohio State law professor Joshua Dressler in his comprehensive treatise Understanding Criminal Law, “many modern statutes are exceedingly intricate” and “even a person with a clear moral compass is frequently unable to determine accurately whether conduct is prohibited.” As a result, ordinary Americans can be victimized by laws supposedly designed to protect them.

Some overcriminalization incidents can sound amusing until we remember that they involve real people whose lives can be ruined. Last year police charged 46-year-old Ocean Beach, Calif., resident Juvencio Adame with “defacement, damage and destruction” of public property in excess of $400 — charges that could have resulted in significant prison time. His crime? Trimming shrubbery next to his home. Then there’s 17-year-old Cody Chitwood of Cobb County, Ga. Police charged him with a felony for bringing weapons into a school zone. The “weapons” were fishing knives, and they were in a tackle box in Cody’s truck. Georgia law states that any knife “having a blade of two or more inches” is a weapon, and that anyone who carries a weapon onto school property is by that very act guilty of a crime.

“Ignorance of the law is no excuse”? Spare us.

What should we do about this grave threat to our liberties? We can start by addressing the inadequate mens rea (guilty mind) requirements in our criminal law. Legislators must work to identify and repeal or amend laws with insufficient mens rea requirements, and ensure that no such laws are passed in the future.

Additionally, lawmakers should codify interpretive rules that require courts to read meaningful mens rea requirements into any criminal offenses that lack them (unless Congress makes it clear that it intended to enact a strict-liability offense with no mens rea requirement) and should direct courts to apply any existing mens rea term in a criminal offense to each material element of that offense. Legislators should also codify the “rule of lenity” — a judicial rule of interpretation that requires courts to construe ambiguous criminal laws in favor of the accused.

Finally, legislators need to provide an escape hatch for those who were “rationally ignorant” of the law: a mistake-of-law defense in which a defendant would have the burden of producing evidence that he did not know that his conduct was illegal, nor would a reasonable person in his position have believed that the charged conduct was illegal.

Once upon a time, it made sense to insist that ignorance was no excuse for violating the law. Today, that maxim often sounds like a cruel joke. Let’s work to ensure that people are criminally punished only for wrongdoing, not for ignorance of laws that they had no reason to think existed in the first place.

— Evan Bernick is a visiting fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

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Overcriminalization Undermines Respect for Legal System

Originally published at The Heritage Foundation by John G. Malcolm and Norman L. Reimer | 12/11/13

Despite some of the sharpest political divisions in memory, Congress managed to mount one noteworthy bipartisan effort this year. Since May, the Over-criminalization Task Force, comprising five Republicans and five Democrats from the House Judiciary Committee, has worked diligently to develop recommendations that will address some of the fundamental problems plaguing the federal criminal justice system. The task force has been analyzing worrisome trends such as:

• the dramatic expansion of the size and scope of the federal criminal code over the past few decades;

• the proclivity of Congress to enact offenses without a mens rea — “guilty mind” — requirement, which leaves people vulnerable to being sent to jail for doing something they had no idea was a crime;

• the tendency to pass laws that are so vaguely worded that the limit of their reach is constrained only by the charging prosecutor’s creativity;

• and the ever-increasing labyrinth of federal regulatory crimes.

At four public hearings convened earlier this year, task force members heard testimony from people representing a wide array of professions and ideologies — from professors and lawyers to everyday citizens who have been unfairly prosecuted. The witnesses all agreed on one thing: Legislation is needed to ensure that criminal laws and regulations are interpreted to adequately protect against unjust convictions for engaging in activities that no reasonable person would assume is against the law.

Several practical reform measures were raised during the hearings. Among these are enacting laws that would require federal courts to read a meaningful mens rea requirement into any criminal offense that lacks one (unless Congress clearly intended otherwise); direct courts to apply any existing mens rea term in a criminal offense to each material element of the offense (similar to subsection 2.02(4) of the American Law Institute’s Model Penal Code); and codify a judicial rule of interpretation that requires courts to construe ambiguous criminal laws in favor of the accused.

Such reforms would embody fundamental fairness — an essential element of good government.

Since its creation in May, the congressional task force has remained faithful to its mandate, while maintaining the bipartisan unity that spurred its creation. The work of the task force, however, is not done. It has yet to address critical issues that fuel, or result from, the over-criminalization phenomenon. Among these are the ever-increasing collateral consequences of conviction; the impact of harsh mandatory prison sentences that sometimes bear little relationship to actual culpability or harm; and the societal costs of over-federalization. While the reforms previously mentioned are critical components of any solution to the over-criminalization problem, they are not the only solutions.

It is imperative that the task force attack the problem as broadly as possible. The answer to every societal ill should not be more criminal laws and harsher sentences. Moreover, over-criminalization can ruin the lives of morally blameless people and undermine the public’s respect for the integrity and fairness of our criminal justice system.

Unfortunately, authorization for the Over-criminalization Task Force expired Nov. 30. It would be a shame to let such a promising start go for naught. The House Judiciary Committee should reauthorize the task force so that it might continue with its important work.

Reviving the panel and its work would send two sorely needed messages. One, that Washington seeks to protect innocent people by restoring justice to the federal criminal justice system and applying common sense and proportionality when punishing those who are blameworthy under the law. And two, that it is still possible for members of Congress to cross the partisan divide and act meaningfully to address a problem that affects us all.

– Editor’s Note:Norman L. Reimer co-authored this commentary.


– John G. Malcolm is the director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

– Norman L. Reimer is the executive director of the National Association of Criminal Defense Lawyers.

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Bipartisanship at Its Finest

Originally published at Cato Institute by Jonathan Blanks | July 19, 2013

“Bipartisanship” sounds like a good idea in theory, but it usually ends up as broad congressional agreement that the American people have too many liberties or too much money. However, there is one area in which there is a growing bipartisan effort toward increased individual liberty: fighting overcriminalization.


Today, the House Judiciary Committee’s Overcriminalization Task Force held its second hearing, in which members of Congress asked two leading legal experts about the importance of restoring some sanity to federal law. Specifically, this hearing focused on the lack of mens rea—that is, criminal intent—in many federal criminal prosecutions. Put simply, as the law stands, an American can unknowingly and accidentally break federal law yet still be held criminally liable for felonies in federal courts. The conduct that leads to these prosecutions is often not serious, and sometimes nothing more than an administrative mistake. Other times, these offenses are simply the result of overzealous federal prosecutors stretching the limits of broad statutory or regulatory language to pad their conviction totals without much effort or expenditure. Yet these seemingly harmless acts can trigger prosecutions that can cost families their livelihoods or even land innocent people in federal prison.


The abuse of the law is so clear that, throughout the hearing that lasted just over an hour, 10 members of Congress and two witnesses—Norman Reimer of the National Association of Criminal Defense Lawyers and law professor John Baker—found very little about which to disagree. You can watch the very heartening and informative hearing here (action begins at the 19:00 minute mark, just after 9:03AM), via the Library of Congress on USTREAM.


For a primer on overcriminalization, I highly recommend Cato’s new video with Families Against Mandatory Minimums’ Molly Gill:

For more Cato on overcriminalization, see here and here.

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Heritage Report: Fighting Back Against Over-Criminalization: The Elements of a Mistake of Law Defense

Originally published at The Heritage Foundation by Paul J. Larkin, Jr. | 6/12/13

A myriad of problems are caused today by overcriminalization—the misuse and overuse of criminal law, which ensnares average citizens for committing acts that are not morally blameworthy and that most people would not know are crimes. Punishing someone who is morally blameless is unjust and engenders disrespect for our legal system.

As described in a previous Heritage paper,[1] a mistake of law defense is needed to deal with the drastic transformation of America’s criminal justice system. This Legal Memorandum describes what the elements of that defense should be and why.

The Essential Elements of a Mistake of Law Defense

The mistake of law defense has a simple purpose: to allow a morally blameless individual to avoid conviction. The contours of the defense also are simple: A defendant is entitled to a complete defense if a reasonable person in the defendant’s position would not have believed—and if the defendant himself did not believe—that the charged conduct was illegal. The defendant should have the burden of producing evidence to support this defense and possibly also the burden of persuasion by a preponderance of the evidence.

A Complete Defense. The defense would exonerate a defendant and therefore is similar to an alibi defense or a successful claim of self-defense or defense of another. By contrast, provocation can merely reduce murder to manslaughter, which makes it only a partial defense. A successful mistake of law defense, however, frees a defendant.

Knowledge of the Law. The government ordinarily does not need to prove that a person knew that he was breaking the law. Indeed, the criminal law decided centuries ago that ignorance or a mistake of law was not a defense.[2] But that proposition became law when there were few crimes and every one of them also violated the moral code. Times have changed, and today, a person can unwittingly run afoul of the criminal law without engaging in blameworthy conduct. Indeed, attorney Harvey Silverglate has estimated that there is a risk of that happening to at least some people every day.[3]

The use of the criminal law to enforce a complex regulatory regime creates numerous opportunities for that scenario. The reason is that, by definition, a regulatory program allows the conduct in question to occur; agency rules merely define when, where, and how. Even the lawyers who practice in a regulated industry will not know all of the statutes, rules, and regulations—which makes hopeless the plight of the average person who lacks legal training or ready and inexpensive access to an attorney.

The proposition that a defendant should not be held liable if he or she did not reasonably believe that he or she committed a crime is settled law in the area of tax prosecutions. In order to convict a defendant of willfully violating the tax laws, the government must prove that the defendant violated a known legal duty.[4] Therefore, a defendant who has a reasonable, good faith belief that he properly reported and paid his or her taxes is entitled to be acquitted of tax fraud.

That requirement has not nullified the federal government’s ability to bring tax prosecutions. A mistake of law defense would simply apply that principle in a broader range of cases.

A Reasonable Belief. Not every mistake of law is exculpatory. A defendant who unreasonably believed that his or her conduct was lawful would not be acquitted. For example, a person who erroneously believed that thievery is not a crime would not be entitled to an acquittal.[5] Some conduct is universally deemed immoral and illegal, and no one reasonably could claim ignorance of those rules. Murder, manslaughter, rape, mayhem, robbery, burglary, arson, and larceny were crimes at common law, and they remain crimes under federal and state law.[6]

Moreover, a mistake defense does not require that the precise circumstances previously have been identified as illegal; conduct closely analogous to the above crimes also would be deemed unlawful. The reason for such measured ambiguity is simple: While the public might not be conversant with the details of every criminal offense, everyone certainly knows the general picture.[7]

A person should not need legal training to avoid breaking the law. In fact, any such requirement would defeat its purpose. The Constitution requires that a person have notice of what the criminal law prohibits. Under the void-for-vagueness doctrine, a criminal law is unconstitutional if it “fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by the statute.”[8] The question in that regard, it is important to note, is whether the statute is capable of interpretation by “a person” of common intelligence,[9] not by “a lawyer” of common intelligence. The same standard should apply for a mistake of law defense.

This inquiry should not be difficult for the courts to undertake. The question whether a defendant reasonably believed that his or her conduct was not unlawful should be analyzed from the defendant’s perspective—that is, based on the facts known to him or her at the time. It makes little difference whether the criminal law treats those differences as issues of fact, law, or both. The important question is whether the defendant acted reasonably, not what type of mistake he made.

Moreover, the reasonableness component of this inquiry is not materially different from the one that the courts use when deciding whether the exclusionary rule or qualified immunity doctrine applies in a given case. For example, in the 1980s, the Supreme Court decided that the suppression of relevant evidence and the imposition of damages liability were unnecessary sanctions in cases in which a government official may have acted unconstitutionally but nonetheless acted reasonably.[10] Those inquiries are objective in nature, and the federal courts have been making those judgments without obvious difficulty for more than 30 years.

Anglo–American courts have also developed the law governing defenses to crimes for centuries.[11] Defining the content and contours of a mistake defense is a traditional task for courts. Indeed, courts readily can rely on reason and experience to define a mistake of law defense just as they have relied on those factors in creating a law of privileges under the Federal Rules of Evidence.[12] Furthermore, if Congress concludes that the courts have gone astray, Congress could overturn their decisions or limit the courts’ authority to engage in case-by-case common law decision-making. But the better approach in the first instance is to allow the federal courts to apply a mistake of law defense in the same manner that they always have done for other defenses.

A reasonableness requirement also answers the claim that a mistake of law defense would allow a party to escape liability on the ground that foreign law or custom justified his or her conduct, such as in the case of a so-called honor killing.[13] Any such claim would be unreasonable as a matter of law. Anglo–American law never has recognized such a defense, and there is little that could be said on its behalf. Such a defense invites disregard of the law, even chaos, which is why the courts have uniformly rejected a right to an instruction on jury nullification.[14] That rationale applies here, too. Intertribal retaliation may be accepted elsewhere in the world, but we do not allow feuding between San Francisco and Baltimore fans because the Ravens beat the 49ers in the Super Bowl.

Finally, keep in mind that the defendant also must have believed that his or her conduct was lawful. The purpose of the defense is to exculpate morally blameless parties, not to create a loophole for people who know more law than the average bear. If the jury finds that a defendant knew that his or her conduct was illegal—perhaps the government previously had cited him or her civilly or administratively for the same conduct—the jury would be duty-bound to reject the defense. For example, if a person in fact knows that a particular drum contains hazardous waste and cannot be stored, transported, or disposed of in the same manner as ordinary garbage but engages in one of those actions despite this knowledge, the jury should find that he knew that what he did was illegal.

“Willfulness vs. “Mistake of Law.” A defendant is not required to prove that his or her conduct was legal; the government has the burden to prove that he or she committed a crime.[15] If a statute requires the government to prove that the defendant “willfully” broke the law, the government, as part of that burden, will have to prove that the defendant intentionally flouted a known legal duty. In any such case, there would be no need for the defendant to assert a mistake of law defense because the issue of whether the defendant knew that his conduct violated the law would be litigated in the context of challenging whether the government has met its burden of proof.

The Burden of Production and Proof. In cases in which the government does not have to prove that the defendant acted willfully, however, Congress could decide to recognize a mistake of law defense and place the burden of production and proof on the defendant.[16] In that event, a mistake of law defense would become an issue in a case only if the defendant raises the defense—which a defendant could be required to assert before trial[17]—and also only if he or she presents evidence that is sufficient to allow the trial judge to conclude that a reasonable jury could find in the defendant’s favor on that proof.[18] The government would not be required to disprove a mistake-of-law defense in its case-in-chief, although the government could do so rather than wait for its rebuttal case. If Congress fears that a mistake defense would allow a scallywag to escape justice, it could place the burden of proof on the defendant.[19] If the defendant did not carry his or her burden, the trial judge would not instruct the jury on the defense.[20]

Conclusion

A mistake of law defense should exculpate morally blameless parties without creating a loophole for miscreants. Both goals are attainable by using a reasonableness standard and by allocating the burden of production and proof to the defendant. So applied, a mistake of law defense would be a reasonable addition to the criminal law and would help to ameliorate the serious problems created by overcriminalization.

—Paul J. Larkin, Jr., is a Senior Legal Fellow and Manager of the Overcriminalization Project in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The discussion in this paper builds on the detailed treatment of the mistake of law defense in Paul J. Larkin, Jr., A Mistake of Law Defense as a Remedy for Overcriminalization, 26 A.B.A.J. Criminal Justice 10 (Spring 2013); Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715, 777–81 (2013); and Edwin Meese III & Paul J. Larkin, Jr., Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725 (2012).

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Heritage Report: The Need for the Mistake of Law Defense as a Response to Overcriminalization

Originally published at The Heritage Foundation by Paul J. Larkin Jr. | 4/11/13

By heavily regulating criminal procedure alone but leaving the definition of crimes and offenses almost entirely in the hands of the political process, the Supreme Court has left open only one option to legislators seeking to address the problem of crime: Make more and more conduct criminal. The result in recent decades has been the “overcriminalization” of the law, with thousands of criminal offenses in federal statutes and hundreds of thousands in federal regulations. No person could possibly be expected to know them all or even to know all of those that may apply to his daily activities. Yet the law still clings to the maxim that ignorance of the law is no excuse at a time when some ignorance is inevitable, particularly regarding malum prohibitum offenses, or crimes outside the category of inherently harmful or blameworthy acts.

Mistake of law as a defense to criminal liability deserves a second look. The proposition that a defendant should be able to raise a mistake of law defense to a charge that he committed a malum prohibitum offense sensibly balances society’s strong interest in enforcement of the law and society’s even more powerful interest in not punishing morally blameless parties. Allowing the courts to filter out the phony from legitimate claims of mistake will separate the blameworthy from the blameless and protect the latter.

The cost of making that distinction likely will prove minimal and, in any event, is worth it. Punishing someone who is blameless is unjust, and that cost must be weighed too. However this change is made—whether by the Congress through a revision of the penal code or by the courts through their power to define common law defenses to crimes—it should be done.

The Overcriminalization Problem

The rule against mistake of law as a defense made sense during the development of the English common law, the ancestor of our own common law, hundreds of years ago.[1] There were fewer than a dozen felonies, and they mirrored then-contemporary morality. Murder, rape, and robbery were universally crimes against God in every religious tradition, so everyone knew that such conduct was forbidden. As John Salmond put it, “The common law is in great part nothing more than common honesty and common sense. Therefore although a man may be ignorant that he is breaking the law, he knows very well in most cases that he is breaking the rule of right.”[2]

That no longer is true. There are more than 4,500 federal crimes and potentially more than 300,000 relevant federal implementing regulations.[3] No one could know them all—not a judge, not a lawyer, and certainly not an average citizen untrained in the law. Even the Justice Department failed when it tried to identify every federal crime.[4] In addition, because so many criminal laws outlaw conduct not normally seen as blameworthy, there no longer is an understandable rule of thumb to know what is and is not a crime.[5]

Over the past 125 years, Congress has increasingly used the criminal law to enforce complex regulatory regimes that were adopted in order to protect the economy, industry, and the public from the harms endemic in a modern industrial economy.[6] The combination of regulatory programs and criminal liability, however, creates serious problems unknown to the common law.

Regulatory statutes are written broadly so that agencies have discretion to respond appropriately to new issues and dangers. Implementing regulations are detailed and complex, and they can demand scientific or technical knowledge that the average person lacks.[7] That combination is unhealthy for the criminal justice system. It demands too much to require the average member of the public to be aware of, to know where to look for, and to understand the regulatory statutes and rules on pain of criminal liability for making a mistake.

A fundamental tenet of the criminal law is that the average member of society must be able to understand it.[8] Advance warning of where the line between lawful and illegal conduct lies, or “notice,” is indispensable if the criminal law is to avoid ensnaring blameless parties. The size and complexity of today’s laws, along with the absence of a usable yardstick to guide non-lawyers, mean that morally blameless parties inevitably, but unwittingly, will commit some acts that turn out to be crimes and as a result could wind up in prison. This problem can ruin the lives of average persons.

  • Abner Schoenwetter, for example, spent six years in a federal prison for importing Honduran lobsters that were packed in plastic rather than paper and supposedly violating a Honduran regulation (later declared invalid by the Honduran Attorney General) that made his lobsters marginally too small.)[9]
  • Lawrence Lewis wound up charged with a felony and pleaded guilty to a misdemeanor for following the procedure he had been instructed to use to clean up toilet overflows at a military retirement home, which wound up shunting the refuse into the Potomac River.[10]
  • Finally, the federal government pursued a criminal investigation of the Gibson Guitar Company for importing wood for guitar frets allegedly exported illegally from India and Madagascar in violation of those nations’ laws—which in the case of Madagascar were not even written in English.[11] In other words, the federal government claimed that Gibson was guilty of a federal crime because it did not know the law of a foreign nation.

In none of those cases did the federal government accuse a party of conduct that was inherently evil, or malum in se, such as murder, rape, or robbery. Instead, the government charged Schoenwetter, Lewis, and Gibson with violating regulatory schemes that made certain conduct a crime simply because legislators decided it to be so. Such crimes are called malum prohibitum offenses.[12]

It may be reasonable for the government to employ civil or administrative remedies rather than relying on private tort actions to prevent dangers to the public health or safety. As these cases show, however, using criminal laws to serve those ends can readily lead to a miscarriage of justice. It is unrealistic to expect a law-abiding person to comply with all federal, state, and local criminal laws and nearly impossible to expect people to know the law of a foreign land.

The effect of using the criminal law to enforce a regulatory regime is to require that a person have legal training to avoid criminal liability. Only a lawyer would know where to look to find the relevant statutes and regulations; only a lawyer (and perhaps few of them) would be able confidently to know that he or she understood all of those laws; and only a lawyer could predict with any degree of accuracy how those statutes and regulations would be applied by bureaucrats, prosecutors, and judges to varying factual scenarios. Yet many of the criminal elements of regulatory laws are premised on the unspoken assumption that persons who are subject to regulation are capable of doing these things.

That assumption is unwise as a matter of policy. At the end of the day, it is not just a legal fiction that everyone knows the law today; it is a hallucination.

The Inadequacy of Piecemeal Solutions

One often-aired solution to the overcriminalization problem is for prosecutors to decline to bring charges in cases like the ones described above. Prosecutors have the discretion not to charge a person who may have technically but unknowingly committed a crime, and in many of those instances, resorting to a civil or administrative fine in lieu of a criminal prosecution can fully satisfy the federal government’s need to enforce the law and to compensate those who may have been harmed by the conduct.

The criminal law is the most severe device that any government can use against its citizens. In cases where the conduct and party at issue are not morally blameworthy, the criminal process is too ruinous a weapon for the government to deploy. No one should be forced to rely on prosecutorial discretion to avoid a criminal charge in such a case.

Under our system of government, the public is entitled to be protected by the law rather than forced to rely on the good faith, common sense, and discretion of government officials. A cardinal principle of our legal system is that the law itself should serve to protect individuals from the excesses and mistakes of the government.[13]

The Supreme Court clearly articulated that principle in 1803 in Marbury v. Madison, stating that ours “is a government of laws, and not of men.”[14] We once had a system of law in which people were subject to the discretion of a king, but we clearly rejected that approach more than two centuries ago, adopting a Constitution that stands between the government and the public and that limits the actions that prosecutors may take to those that are enacted through the legislative process set forth in the Constitution.

The Need for a Mistake of Law Defense

To address overcriminalization requires ensuring that the law itself does not trip up unsuspecting parties. The key step is to return the criminal law to its common law focus on blameworthy conduct. To achieve that result, Congress could allow a defendant to raise a mistake of law defense to establish his or her innocence.

Traditionally, Congress has left to the federal courts the responsibility to define defenses such as self-defense, duress, or necessity, or reliance on the opinion of a government official.[15] On occasion, however, Congress itself has taken up the task of defining the elements of a defense. Insanity is one example.[16] Whether defined by Congress or by the federal courts, a mistake of law defense would be a sensible way to deal with the overcriminalization problem that we see today.[17]

Mistake of Law vs. Mistake of Fact. Mistakes can be of fact, of law, or both. A mistake of fact already is a defense to some crimes because it can disprove a necessary mental state to a crime such as theft, which requires proof of the intent to deprive someone else of his or her property. Mistakenly taking your colleague’s umbrella thinking that it was your own—which is a mistake of fact—would not make you a thief.

A mistake of law defense could be used in different but analogous circumstances. For example, a person who reasonably and honestly believed that the wood he imported to make guitars was taken in full compliance with the law of the host nation could use a mistake of law defense to fend off a criminal charge such as the one used against Gibson Guitar.[18]

The common denominator in both cases is that no reasonable person would have known that his actions were a crime. Yet the criminal law currently permits a defendant to raise a mistake of fact defense but denies him the same opportunity if his mistake is legal. In both cases, however, the defendant is morally blameless.

The Current Need. That disparity made sense when the number of statutes in the penal code could be counted on the fingers of two hands and involved conduct that was commonly recognized as wrong. The economy then was agrarian, not industrial. There were no regulatory agencies and no regulations. There were very few crimes, and the courts created the ones that did exist. Congress had not yet preempted this field. But that day is long past and will never return. The penal code now is far larger and far more complex, the setting that gave birth to the common law “ignorance of the law is no excuse” rule has disappeared, and the rationale that “everyone knows the law” has vanished.

Those changes militate in favor of re-examining the merits of a mistake of law defense. In the classic words of Oliver Wendell Holmes, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”[19] If that is so, as it surely is here, it is incumbent on Congress to reconsider the common law’s refusal to recognize a mistake of law defense.

There is a powerful case to be made for that defense today. If no one could reasonably be said to know all of the rules that create criminal liability, it is unreasonable to retain the common law proposition that everyone does know them.[20] Indeed, it is intellectually dishonest for the criminal law to act as if that proposition still is or even could be true today. If a lawyer could not hope to know all of the criminal laws, what hope does an ordinary member of the public have? As the late William Stuntz observed, “Ordinary people do not have the time or training to learn the contents of criminal codes; indeed, even criminal law professors rarely know much about what conduct is and isn’t criminal in their jurisdictions.”[21]

Adults and children alike know the inherent unfairness of being punished for conduct that no one could reasonably have believed was criminal. Past and present prominent legal scholars such as Sir James Fitzjames Stephen, John Austin, Edward Keedy, Jerome Hall, and Wayne LaFave have criticized that proposition as being “an obvious fiction,” “notoriously and ridiculously false,” “absurd,” or “so far-fetched in modern conditions as to be quixotic.”[22] Those criticisms have grown stronger over time[23] Even the Supreme Court of the United States now characterizes the common law rule as a just a “cliché.”[24]

The Law Should Guarantee Fair Notice. Several contemporary legal doctrines support the proposition that a party should not be held liable for conduct that no reasonable person would have thought was a crime. The common law rule of lenity requires that any ambiguity in a criminal statute be resolved in the defendant’s favor on the ground that no one should bear the risk of criminal punishment for misreading an ambiguous law.[25] Likewise, the “void-for-vagueness” doctrine bars the government from prosecuting anyone under a vaguely written criminal law.[26] Like those doctrines, a mistake of law defense recognizes the inherent unfairness of punishing someone for conduct that he or she was unaware had been outlawed.

The rule of lenity and the void-for-vagueness doctrines address the problem of inadequate notice at the retail level, because those doctrines focus on a statute-by-statute basis. A mistake of law defense addresses the problem at the wholesale level. It addresses the problem that there are so many criminal laws that no reasonable person could be expected to know them all. Stanford Law Professor Herbert Packer’s discussion of this point merits reading in full:

If the function of the vagueness doctrine is, as is so often said in the cases, to give the defendant fair warning that his conduct is criminal, then one is led to suppose that some constitutional importance attaches to giving people such warning or at least making such warning available to them. If a man does an act under circumstances that make the act criminal, but he is unaware of those circumstances, surely he has not had fair warning that his conduct is criminal. If “fair warning” is a constitutional requisite in terms of the language of a criminal statute, why is it not also a constitutional requisite so far as the defendant’s state of mind with respect to his activities is concerned? Or, even more to the point, if he is unaware that his conduct is labeled as criminal by a statute, is he not in much the same position as one who is convicted under a statute which is too vague to give “fair warning”? In both cases, the defendant is by hypothesis blameless in that he has acted without advertence or negligent inadvertence to the possibility that his conduct might be criminal. If warning to the prospective defendant is really the thrust of the vagueness doctrine, then it seems inescapable that disturbing questions are raised, not only about so-called strict liability offenses in the criminal law, but about the whole range of criminal liabilities that are upheld despite the defendant’s plea of ignorance of the law.[27]

Like the void-for-vagueness doctrine, the mistake of law defense addresses the problem of inadequate notice—the inability for the average person to know the contours of the law without a lawyer’s guidance.

Conclusion

As Ronald Cass, Dean Emeritus of Boston University School of Law, has observed:

The crux of the case againstignorantia legisthus is embodied in this question: If it is inconsistent with basic notions of fairness to penalize one for an act that, because of the nonexistence, inaccessibility, or vagueness of the law, the actor believed legal when done, why is it fair to punish one who is ignorant of the law for any other reason.[28]

The common law rule that ignorance or mistake of law was not a defense made sense in a time when the criminal laws were few in number and reflected what contemporary morals made clear to all. That state of affairs no longer exists, however, so it is our duty to change the law to reflect the modern state of affairs.

Properly defined and applied, a mistake of law defense would be a valuable addition to the criminal law today. It would exculpate morally blameless parties for conduct that no reasonable person would have thought was a crime. The defense would ensure that no one could be convicted of a crime when criminal liability was unforeseeable. Both the criminal justice system and society would be better off with such a rule in place.—Paul J. Larkin Jr. is a Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. This paper is an abridged version of the detailed treatment of the subject in Edwin Meese III and Paul J. Larkin Jr. Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725 (2012), and Paul J. Larkin Jr. A Mistake of Law Defense as a Remedy for Overcriminalization, 26 A.B.A. J. Crim. Just. ___ (2013) (forthcoming).

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Overcriminalization and the Tragic Case of Aaron Swartz

Originally published at National Review by Ammon Simon | 1/15/13

On Friday, 26-year-old internet activist Aaron Swartz—who was facing 13 federal charges, along with a potential $1 million fine and 35 years in prison—committed suicide. Federal prosecutors had charged Swartz with using an unlocked MIT computer closet to download, for free, articles from subscription-based academic service JSTOR. Unfortunately, this tragedy is one more example of the increasing problem of over-criminalization. 

I don’t have the technical expertise to tell you exactly what Swartz did or if it violated federal law. Swartz’s expert witness, Alex Stamos, says that it did not, while Professor Orin Kerr disagrees. 

However, assuming Swartz did break the law, did he really deserve to face 35 years in federal prison for his actions? ThinkProgress Justice (not usually my main source for legal news) lists lesser-punished federal crimes, including (1) bank robbery, (2) selling child pornography, (3) knowingly spreading AIDS, (4) selling slaves, (5) genocidal eugenics, and (6) helping al-Qaeda develop a nuclear weapon. 

In Jacksonville, gang members that “committed a series of violent felonies and crimes, including an extortion that left one man nearly dead; the choking of a young woman until she passed out; armed bank robberies; armed home invasions; daily cocaine and opiate sales; and theft of thousands of dollars’ worth of merchandise from local stores,” received a lesser federal sentence of 30 years in prison.

As Jonathan Blank argues:

Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government.  Unchecked and vindictive prosecutions ruin lives..

Lest there be any doubt about prosecutor’s overreach, even JSTOR settled their civil claims against him in June 2011, and released the following statement after Swartz’s death:

We have had inquiries about JSTOR’s view of this sad event given the charges against Aaron and the trial scheduled for April. The case is one that we ourselves had regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge. At the same time, as one of the largest archives of scholarly literature in the world, we must be careful stewards of the information entrusted to us by the owners and creators of that content. To that end, Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011.

 Ted Frank has a useful compilation of links on this story, along with other examples of over-criminalization. 

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Restore the Law’s FOCUS

Originally published at National Review by Paul Larkin Jr. | 5/7/12

Senator Rand Paul (R., Ky.) and Representative Paul C. Broun (R., Ga.)

Striking a blow against overcriminalization

You’ve been invited to participate on a new game show called Do You Know the Law? Two wrong answers eliminate you.

“Why not?” you say to yourself. “I know as much law as the next person. What’s the worst that could happen: embarrassment?”

The first panelist correctly answers the question, “Can you steal your neighbor’s car?” The second aces the query, “Can you lie on a loan application?” You, however, get the question, “Do you import spiny lobster from Honduras in a plastic bag or a cardboard box?”

You are flummoxed, though not alone. (It turns out that a lawyer and a judge on earlier shows got it wrong, too.) After guessing “plastic” and not hearing applause, you figure that at least all the tough questions are behind you. But on your next turn, you hear, “What is the minimum-size lobster that you can import from Honduras, 5 inches or 5.5?” Guessing incorrectly again, you are whisked away bemoaning the unfairness of being asked questions that no reasonable person could answer correctly.

#ad#But the feds expect everyone to get those questions right. Just ask Abner Schoenwetter. He was charged under a law called the Lacey Act with precisely those “heinous” crimes: importing lobsters that, supposedly in violation of Honduran law, were too small to be taken and should have been packed in boxes, not clear plastic bags. Turns out, the law was void. But the U.S. Justice Department prosecuted him anyway, and the federal courts upheld his conviction.

Unfortunately for Abner, he wasn’t just asked to leave the courtroom empty-handed. He spent five-plus years in federal prison for getting those two questions wrong. True story. And if you find it startling, disturbing, and outrageous, you’re not alone.

Welcome to the world of overcriminalization — the overuse and misuse of the criminal law. Congress enacted the Lacey Act in 1900 as a modest way to protect states against poachers who fled across state lines. Today, however, the Lacey Act makes it a federal crime to import fish, wildlife, or plants in violation of any foreign law adopted in any form by any foreign nation, irrespective of the reasonableness of a person’s conduct. The result, predictably, has been miscarriages of justice, because it is utterly unreasonable to hold someone criminally liable for violating another nation’s law.

Anglo-American law presumes that every person knows what the criminal code forbids. That proposition made sense at common law, when a crime against God also was an offense against the King. Today, however, that proposition is (at best) a fiction. The criminal law now is used not just to condemn inherently nefari­ous acts (e.g., murder), but also to reg­ulate conduct that is a crime only because Congress says so. And Congress says so often.

There are more than 4,500 federal criminal statutes, and hundreds of thousands of implementing regulations. No one could know everything in the federal criminal code, and anyone who claims that he does is a liar or a lunatic. But even if someone managed that feat, he still would not be home safe. The Lacey Act demands that you also know every law — civil and administrative as well as criminal — of every foreign land.

Foreign laws can be just as intricate as ours, and even less accessible, less reflective of our mores and values. They might not even be written in English. Requiring someone to know them all is unreasonable, and even silly.

But there is hope. Senator Rand Paul (R., Ky.) and Representative Paul C. Broun (R., Ga.) have introduced companion bills in the Senate and House to prevent such miscarriages of justice as befell Abner Schoenwetter. The Freedom from Over-Criminalization and Unjust Seizures Act of 2012, S. 2062 and H.R. 4171, would make the Lacey Act enforceable only through civil process.

“Odd bedfellows” from the Heritage Foundation, the Manhattan Institute, and the Washington Legal Foundation to the National Association of Criminal Defense Lawyers and the ACLU have expressed the need to reform the Lacey Act to eliminate the possibility of unjust criminal prosecution. A subcommittee of the House Natural Resources Committee has scheduled a hearing on H.R. 4171 for Tuesday, May 8.

Unfortunately for the Abner Schoenwetters of America, federal courtrooms are not as hospitable as game-show soundstages. As long as the Lacey Act criminalizes everyday actions that unintentionally offend some obscure foreign regulation, courtroom “contestants” can walk away with serious jail time, a decidedly un-lovely — and unjust — parting gift.

— Paul J. Larkin Jr. is senior legal fellow and manager of the Overcriminalization Project at the Heritage Foundation’s Center for Legal & Judicial Studies.

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Meese Makes Case Against Overcriminalization at Seton Hall Law

Originally published at The Daily Signal by Joseph Luppino-Esposito | 4/17/12

Imagine the police knocking on your door because you mistakenly forgot to fill out an obscure form required by foreign law before opening up a small business.  Imagine your 80-year-old mother being arrested for failing to place the appropriate sticker on an otherwise properly shipped package.  Imagine your cancer-stricken neighbor being criminally charged for failing to trim the shrubbery in front of their house.  Or imagine your child being prosecuted for eating a French fry in a public place.

Unfortunately, none of these situations is imaginary.  While delivering the keynote address at a Seton Hall Circuit Review symposium dedicated to overcriminalization, Edwin Meese III, the former Attorney General of the United States, noted that these are “examples of recent cases where ordinarily law-abiding citizens suddenly found themselves prosecuted as criminals.”  He also noted to the audience of lawyers, law students, and academics that the harm of overcriminalization is not merely the possibility of jail time, but the additional insult that results from being thrown into the criminal justice system and the corresponding loss of personal and business reputation.  In many cases, individuals found not guilty or those indicted but never prosecuted by the government are unable to cleanse themselves of the stigma of being charged with a crime.  Furthermore, while the prosecution of these individuals is highly publicized, an acquittal or the investigation’s termination usually goes unannounced.

“In a democratic republic, government must perform its public safety functions within a framework of liberty and justice,” said Meese.

Meese noted that there were approximately 3,000 federal criminal statutes in the mid-1990s according to an American Bar Association task force.  By the turn of the millennium, Congress had added another 1,000 criminal statutes to the United States Code.  And today, leading experts estimate that there are nearly 4,500 criminal offenses in the federal code alone.

The story does not end there.  Meese observed that the explosive growth of the federal bureaucracy has exacerbated the problem.  In recent years, Congress has adopted broad statutes authorizing administrative agencies to promulgate regulations, which when violated, constitute a crime.  These regulations do not appear anywhere in the United States Code.  Instead they are found in the Code of Federal Regulations, which the great majority of law professors and students have never even touched, never mind average citizens.  With more than 300,000 regulations at the federal level alone, it comes as no surprise that innocent Americans are increasingly snared in the web of the criminal justice system.

What may be particularly disturbing is the way in which the criminal law is used as a blunt instrument for something that it was not intended. As overcriminalization has increased, it has become clear that “criminal law and criminal punishment become nothing more than convenient tools for the exercise of government power to make sociological changes or to try to change social behavior,” Meese said. “The implications of this kind of power in the hands of government officials are grim for all aspects of American life, from personal liberty to global economic competitiveness,” he added. “If one has a utopian view of society then surely it follows that the most powerful force for compelling change, that is, criminal punishment, ought to be used to bring about that utopia.”

Lest we despair too much, there is a light at the end of this tunnel.  When the nation’s former chief law enforcement officer is at the forefront of addressing the growing trend towards overcriminalization, change is possible.  And General Meese is not alone in this fight.  Joining Meese and Heritage are organizations across the political spectrum, including the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Manhattan Institute, and Washington Legal Foundation, making the possibilities endless.

The time has come to remind our lawmakers in Washington, D.C., and in state capitals nationwide what every law student knows by graduation:  Punishing conduct by individuals who lack a guilty mind should be the exception and not the rule.  And it is time for lawmakers to stop criminalizing broad swathes of conduct while leaving the details to administrative agencies.  As Meese noted at the conclusion of his speech, “If it is important enough to send someone to prison, it is important enough for the Congress itself to debate that particular conduct and that particular punishment in a statute.”

An audio stream of Meese’s speech may be found here.

Joseph Luppino-Esposito is a Visiting Legal Fellow at The Heritage Foundation.  Co-authored by Rahool Patel, a third-year law student at Seton Hall Law School and the Symposium Editor of the Seton Hall Circuit Review.

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Heritage Report: Retribution and Overcriminalization

Originally published at The Heritage Foundation by Gerard V. Bradley | 3/1/12

Abstract: From the ever-expanding number of federal criminal laws to prison sentences that are too numerous or too long, there are many promising bases for criticizing overcriminalization. One such basis, however, has yet to be fully considered: the fact that too many criminal offenses today are malum prohibitumoffenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. In order to limit the growth of laws criminalizing morally innocuous conduct—a development that, in turn, would curb overcriminalization—the U.S. legal community would be well-served to explore the concept of retribution and the manner in which it provides an account of how punishing those convicted of criminal offenses is morally justified. Punishment without a firm basis in retribution is unjust and therefore should be avoided.

From the ever-expanding number of federal criminal laws to prison sentences that are too numerous or too long, there are many promising bases for criticizing overcriminalization. One such basis, however, has yet to be fully exploited for its potential to limit overcriminalization: the fact that too many criminal offenses today are malum prohibitum offenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. These offenses often capture conduct that would otherwise be natural and even desirable in business, commerce, accounting, or everyday life. The primary instances discussed throughout this paper are strict liability regulatory offenses (referred to as the “central case”).[1]

In order to limit the growth of laws criminalizing morally innocuous conduct—a development which, in turn, would curb overcriminalization—the U.S. legal community would be well-served to explore the concept of retribution and the manner in which it provides an account of how punishing those convicted of criminal offenses is morally justified. Indeed, punishment without a firm basis in retribution is unjust and therefore should be avoided.

Using the principle of retribution to critique overcriminalization may seem paradoxical for two separate reasons. The first arises from widespread and sometimes grotesque misunderstandings of retribution, such that it is often caricatured to mean lock up as many people as possible for very long times. In truth, however, retribution has no built-in tendency toward severity. The second criticism arises from the fact that retribution is a justification for punishment and not a theory about substantive criminal law. But what justifies also limits. Retribution offers solid moral bases for opposing overcriminalization.

Criticisms and Confusion: Toward a Proper Understanding of Retribution

Confusion about retribution, and about the moral justification for punishment more generally, is rampant. Almost nothing in standard first-year criminal law casebooks gets it right.[2] Scholarly literature is scarcely more helpful. Legislative reformers rarely understand it and, by all accounts, never accord it the central place that it needs to occupy if the institution of punishment is to be adequately justified. High state court authority is just as confused.

This widespread misunderstanding is one reason why retribution is so neglected today. Indeed, if retribution really did mean what people seem to think it means, then it ought to be neglected. But retribution is not lex talionis, the law of retaliation—“an eye for an eye”[3]—as many think it is.

To apply the “eye for an eye” norm non-metaphorically, a polity would have to be willing to do whatever its most depraved members might do. Probably no society has so abandoned moral constraint in the pursuit of criminal justice. It is true that “eye for an eye” is found in the Bible and was apparently meant to serve as a practical guide for the ancient Israelites, but biblical scholars have explained that the “eye for an eye” axiom was not an authorization of punishment or even a command to exact a like penalty. It was instead meant to limit retaliatory acts by kin and friends of the victim to no more than the loss incurred.[4]

The historical prevalence and perennial allure of retaliatory excess—vendettas, blood feuds, lynchings, and the like—no doubt had much to do with the emergence of public systems of criminal justice. According to Oxford legal philosopher John Gardner, it was “for the elimination of these modes of retaliation, more than anything else, the criminal law as we know it today came into existence.”[5] Even so, society must distinguish between this—what Gardner calls the “displacement function” of criminal law and punishment—and its critical moral justification. For there is no necessary connection, either logically or practically, between a practice’s origins and its critical moral worth. It is easy to see, too, that the “displacement function” cannot morally justify defining some conduct as a crime or imposing criminal punishment on anyone.

Notwithstanding some historical kinship with retaliation, retribution properly understood as a critical moral proposition is not about domesticating popular hatred for a known criminal. It is not about channeling repugnance toward a particularly heinous crime. It is not state-orchestrated revenge. Retribution is not driven by anger, hatred, or any other emotion; it is distinct from community outrage. It is perhaps admissible to hold that these pacific tendencies are one desired effect or function of punishment, but that is not to say that retribution’s tendency to pacify the passions of victims of crime and their communities constitutes a moral justification for punishment: It certainly does not. Mob-conducted lynchings and similar acts of cruelty and injustice are also capable of pacifying community outrage for (real or perceived) wrongdoing, but civilized society condemns such conduct.

Against the Transfer Justification of Punishment

H.L.A. Hart, one of the leading legal philosophers of the 20th century, famously argued that society may impose punishment on an offender only where society has been “harmed.” He identified two types of harms: where the authority of law is diminished and where a member of society is injured.[6] Hart’s first category could be mistaken for an awkward description of the retributive view described here, but his view of crime and punishment was very different from the one that is considered in this paper.

Hart’s second harm—that a member of society is injured—points toward a deeper investigation of the moral relationship between the institution of punishment and private rights. Hart is scarcely alone in holding this view. Richard Swinburne has argued that the state enjoys authority to impose punishment for criminal harm only where it serves as a proxy for the individual victim,[7] and he said that this was a retributive viewpoint.

Swinburne and Hart apparently imagine a state of nature similar to that described by John Locke: a notional place where individuals hold a natural moral right to punish those who harm them.[8] When these individuals band together to form a civil society, these thinkers (Swinburne, Hart, and perhaps Locke) suppose that they transfer their natural authority to punish to the emergent political authority, so the state punishes as agent or delegate of the community—conceived as an aggregate of individual rights-bearers, now standing down.

This whole line of thought is mistaken. Civil society does not punish as transferee or delegate of the victim. Civil society punishes in its own name for its own sake because civil society itself is the victim of each and every crime. Indeed, central political authority and its authoritative directives for the common good—laws—are a necessary precondition to and are conceptually derived from the institution of punishment.

There are two additional compelling arguments against the transfer justification of punishment theory.

First, as a matter of contingent fact, criminal acts often do involve an injustice to one or more specific persons: the defrauded elderly lady, the black-eyed assault victim, the hapless pedestrian whose car was stolen. But many crimes lack any such unwilling, particularized victim. Among these offenses are many public morals laws (drug possession, gambling, and prostitution); offenses against the state (including treason, espionage, and lying to the grand jury); and “quality of life” crimes (littering and public intoxication). In these cases, it is often far from obvious which individuals, if any, have a natural right to punish those who did them harm.

Second, there is good reason to doubt the premise of the transferor theory: namely, that there exists a natural right to punish those who do wrong to oneself or to one’s kin. People do have a natural right to defend themselves against attack and theft. People do have a natural right (within limits) to take back any goods that have been wrongfully taken from them. People do have a natural right to demand some remedy for vandalism or other wrongful deprivation of property. And people have a natural right to use force that is reasonable in amount and kind in order to accomplish those goals. But all these rights bundled together do not yield, imply, or entail a natural right to punish, because the nature of punishment differs from the nature of self-defense, replevin, or restitution. Nor do these rights promise moral justification of criminal punishment (even if they perhaps do provide justification for an inchoate tort system and an embryonic joint protective or police association).

Wicked deeds are a necessary but not a sufficient condition for morally justified punishment. Individuals regularly witness acts of injustice by others—lying spouses, cruel parents, disrespectful children, cheating colleagues—but it scarcely occurs to those witnessing these acts that they, as individuals, are authorized to punish those bad actions. Moreover, even if it is presumed that person A misbehaves and that his misbehavior warrants the judgment “A deserves to be punished,” it does not follow that B, C, D, or anyone else has the moral authority to punish A. Even in advanced legal systems, violations of law do not automatically authorize anyone to punish the violator; only certain officials wielding designated powers according to the relevant positive law are designated competent to punish others.

Civil Authorities and the Imposition of Punishment

Punishing a criminal involves the deliberate imposition by the political community’s administrative arm—the state—of some privation or harm upon an unwilling member of society. Whether punishment takes the form of a fine, incarceration, or (historically) the rack, the question arises: How is such a grave imposition upon someone morally justified?

The question of why civil authorities are entitled to punish is usually treated in law school as the “point” or “purpose” or “rationale” of punishment and not often as a question about its “moral justification”—a sign of the confusion that usually follows. The question is typically the first topic in criminal law class.

The laundry list of punishment’s purposes in criminal law casebooks includes deterrence, rehabilitation, and incapacitation. These purposes refer to, respectively, sanctioning a convicted criminal with a view to providing a disincentive to him or others to commit similar crimes, making the criminal well psychologically and socially, and isolating the criminal from law-abiding people. The problem is that none of these “rationales” provides an adequate moral justification for punishing anyone. Retribution does. But retribution is usually mangled in the teaching materials.

The Purposes of Law in Political Society

Understanding retribution depends upon a prior understanding of the purposes of law and the nature of cooperation in political society.

In the absence of any established political order, people would be free from authoritative constraint to do as they pleased. Their choices would not necessarily render society an uncontrollably selfish state of nature, as Thomas Hobbes anticipated.[9] Absent political order, some people would act reasonably—maybe even altruistically—and seek to cooperate with other people to achieve common benefits. (Call this the possibility of private ordering.)

But such a state of nature would, by definition, lack the means to structure the sort of cooperation that a large and heterogeneous society sometimes requires. Even custom could not provide this structure, at least for any large or complex society. States of nature lack altogether a common or effective authority by which to bring recalcitrants and free riders into line and by which to respond coercively to those who acted unfairly outside of the common pattern. Without some such central authority, the weaker members of society would be prey for the stronger, save where the former allied themselves into protective associations with the latter—in which case the excesses of vendettas and retaliatory raids might call forth a central authority: a proto-state.

Political society provides just such an authoritative scheme for structuring cooperation. Once this authority is up and running and providing direction (usually through law), justice requires individuals to accept the pattern of liberty and restraint specified by political authorities. Indeed, it is everyone’s acceptance of the established apparatus of political society for the purposes of cooperation for common good that makes civil liberty possible. One crucial meaning of equality and liberty within political society is precisely that everyone observes the pattern of freedom, restraint, and forbearance set up by these authorities.

Criminal acts often—but far from always (e.g., so-called victimless crimes)—involve injustice to one or more specific individuals, such as the battered spouse. What always occurs in crime is this: The criminal unjustifiably usurps liberty to pursue his own plans and projects in his own way, notwithstanding the law’s pattern of restraint. Thus far considered, the entire community remains within the law, each member denying to himself the liberty to do as he pleases except for the criminal. The criminal acts outside the pattern of common restraint and thus of mutual forbearance and cooperation.

The central wrong in crime, therefore, is not that a criminal causes harm to a specific individual. Rather, it is that the criminal claims the right to pursue his own interests and plans in a manner contrary to the common boundaries delineated by the law. From this perspective, the entire community—with the exception of the criminal—is victimized by crime. The criminal’s act of usurpation is unfair to everyone else; he has gained an undue advantage over those who remain inside the legally required pattern of restraint. In this view, punishing criminals is necessary to “avoid injustice, to maintain a rational order of proportionate equality, or fairness, as between all members of society.”[10]

Punishment restores the fundamental fairness and equality of mutual restraint disturbed by the criminal’s act. A criminal is punished in order to efface (as it were) his prior extravagance. By and through his punishment, society is restored to the status quo ante: The equality of mutual restraint within law is—morally speaking—re-established. The criminal’s debt to society is paid.

Again, depriving the criminal of this ill-gotten advantage is the central aim of punishment. Since that advantage consists primarily of a wrongful exercise of freedom of choice and action, the most appropriate means to restore order is to deprive the criminal of that freedom. Punishment sometimes includes sensory deprivation and even limited and transient pain, such as the pain of being shackled or of not being able to satisfy one’s hunger, and these will likely be experienced by the criminal as “suffering.”[11] The essence of punishment, however, is to restrict a criminal’s will by depriving him of the right to be the sole author of his own actions.[12]

Retribution: Moral Explanations and Justifications for Punishment

Arguing that retribution should be (at least) the primary driver of the moral justification of punishment is not like advocating that society dust off an impractical moralism, as if retribution were somehow a “justification in exile.” Retribution not only performs the invaluable service of justifying an essential but morally confounding social practice; it also provides morally adequate explanations for some anchor commitments within that social practice.

Take, for example, the ubiquitous styling of criminal prosecutions as a lawsuit to which the entire community is party, as in People v. Smith. Why are the “People” (or the “State” or the “Commonwealth”) the complaining party in every criminal case? Perhaps because retribution shows why and how by showing how society as a whole is victimized by every criminal act.

Retribution also underwrites the whole moralistic framework and language of criminal justice in a way that no other account of punishment can do. “Praise and blame,” “freedom and responsibility,” “guilt and innocence,” “crime and punishment”: This whole panoply of concepts and terms is part and parcel of America’s criminal justice experience, and it is supported well by retributive theory. So, too, is the act-specific and choice-specific focus of the criminal law.

From a retributive view, no one’s uncharitable attitudes, character defects, or personality disorders (all of which might trigger intervention in a rehabilitative or reformative regime of punishment) are fit grounds for punishment. The reason that they are not predicates for punishment owes to the fact that they are not acts of usurping liberty. The mere possession of these traits or beliefs is not, moreover, unfair to others.[13] Proponents of rehabilitation and paternalistic moral reformers, by contrast, are hardly able to explain why their particular ministrations must always await (by dint of moral imperative) the performance of some prohibited act.[14]

Another indication of how retribution explains and justifies punishment involves a perennial chestnut of first-year criminal law classes: What if a public authority could stave off riots and mayhem only by hanging an innocent person popularly believed to be guilty? The commonplace statement of moral priorities in society has long been “better that a hundred guilty persons go free than that one innocent suffer.”[15] Perhaps a hundred is hyperbole; Blackstone put the number at 10.[16] No matter, though, because both numbers express an important truth: A just society never wittingly convicts an innocent and stops at almost nothing to avoid negligently doing so.

Why? What are the moral underpinnings of this commitment, which is deeply embedded in this nation’s law and institutions?

Where retribution forms the moral justification for punishment, the problem of punishing the innocent can be solved. The aim of retribution is always frustrated—and is never served—by punishing the innocent. Punishing someone who has committed no offense is counterproductive. If someone has not distorted society’s equilibrium by committing a criminal act, harming him cannot restore that equilibrium, especially while the truly deserving party escapes retribution. Making an innocent disgorge his bold act of will is impossible, for there is nothing to be disgorged. Inflicting “punishment” on the innocent is instead simple scapegoating, which, even if it could somehow be morally justified, is surely not punishment at all.

Additionally, retribution promises cogent instruction on some controversial issues of the day. Retribution points straightaway, for example, in favor of determinate sentencing. The harm of any crime is cabined within a defined act performed on a particular occasion, and the measure of punishment required to redress it is tied tightly around that discrete act and its particular harm, both conceptually and morally.

Retribution also points, however, to a negative judgment on the broad movement in favor of “victims’ rights.” The specific victims of a criminal act deserve to be taken seriously and treated reasonably by all actors in the criminal justice system, from their first police encounter all the way through trial and sentencing. But it is dubious policy to make dispositive victims’ opinions about the disposition of what some call “their” cases and about appropriate penalties for offenders. Reconciling victims with their victimizers is not a bad idea, but in most cases, it may be quixotic, and in no case should it be the only goal of those public officials who are in charge of criminal justice matters.

Retribution and Overcriminalization

The foregoing slog through retribution and its virtues and alleged vices lays the foundation from which this paper may now take aim at overcriminalization. Below are five distinct criticisms of this phenomenon. Each is based upon moral principle. Each cuts deeply. The five are mutually reinforcing in very interesting ways, and the whole may be greater than the sum of its parts. Taken together, these five criticisms support the conclusion that the central case of overcriminalization—viz., a strict liability regulatory offense—is a case of unjust punishment, which is to say that it should not be done.

The following considerations do not address whether any one of the criticisms or some combination of them short of five supports the same conclusion. The effective force of these five criticisms upon secondary and peripheral cases of overcriminalization is also left aside, save to say that these criticisms have considerable extended force.

Criticism #1: Overcriminalization is driven by a desire to deter and is therefore unable to morally justify criminal sanctions.

As the Manhattan Institute’s Marie Gryphon writes:

[O]ften the overriding reason for enacting a piece of legislation is to produce an overall social benefit, and the criminal sanctions attached to certain forms of conduct…are chiefly aimed at conducing to that benefit by deterring that conduct rather than stigmatizing it and punishing the person who carried it out….[17]

Because it is impossible to fit the central case into the retributive framework—and because rehabilitation and moral reform are inapposite too—deterrence is left haplessly to shoulder the whole moral justificatory burden.

It is not altogether misleading to say that the goal of any criminal justice system is that certain conduct become rarer than it otherwise would be, and it is often said that retribution looks backward while deterrence looks forward and anticipates a beneficial societal result (more specifically, less crime). In this formulation of punishment theory, retribution is sometimes said to inflict socially useless suffering upon people and thus to be beyond the pale of worthy social policy. So far considered, it seems that deterrence and not retribution ought to be driving things.

The sole goal of deterrence is to reduce the future incidence of crime. Deterrence thinking is suffused with utilitarian theories of value, which tend toward social engineering in their social analyses. Retribution aims to restore a lost balance of fairness and equality for its own sake and not (as utilitarians would insist) because it is an overall state of affairs which includes proportionally more of goods or values or preferences than it does of corresponding negations, however these matters are determined.

The goal of retribution, though, is to re-establish the balance of fairness in political society. Both theories of punishment thus attempt to have a positive effect on society after the incidence of criminal activity, albeit in different ways. Retribution has the considerable further advantage of being capable of morally justifying criminal sanctions, which deterrence by itself lacks. And deterrent aims may be integrated (up to a point) with retributive moral underpinnings in a functioning criminal justice system, such as our own.[18]

Criticism #2: Overcriminalization disfigures the whole moralistic aspect of criminal law and its enforcement in two very different ways.

The first way arises from the fact that, for the foreseeable future, a criminal conviction will continue to stigmatize the offender as morally deficient: as the possessor of tainted, if not just plain bad, character. But someone convicted in our central case (like others whose punishment cannot be justified on retributive grounds) does not deserve this obloquy. Nor is he rightly made to suffer the many collateral consequences that come with a criminal conviction—being labeled as a criminal offender, being deprived of his right to vote, and many other legal and informal social disabilities and handicaps.

The second distortion stems from the first. Precisely because the central-case defendant is not a moral reprobate, the moral obloquy of criminal conviction is likely to be watered down by its improvident extension to him. This sullying effect is not limited to the precise regulatory offense at issue or to a class of similar offenses. The point is that the social identification of criminal conviction with moral fault will be watered down across the board.

The classic example is overtime parking, a trivial violation of the motor vehicle code that probably everyone who has ever driven has committed at some time. Because everyone has committed that offense, no one treats the matter as evidence of a character flaw. The result is that, for such infractions, society has severed the connection between a moral defect and a criminal offense. Because there are very good reasons to retain and preserve this connection and to preserve it as a common good, overcriminalization portends a potentially serious social loss.

Criticism #3: Overcriminalization creates a scenario in which the central-case defendant can be punished without performing the generic conduct—the liberty grab—that is the moral predicate of just punishment.

The third criticism hearkens back to the retributive understanding of the defining harm of criminal conduct, which is the malefactor’s unilateral grab of more liberty than he is due. This is the morally reprehensible preference for one’s own will over the prescribed legal course and at the expense of the common good, which is the heart of the retributive story.

The central-case offender, however, had no opportunity to choose to comply (or not) with the law. Or he might have chosen to (try to) comply but non-negligently failed to do so. In either event, he does not deserve to be punished, because he has not performed the generic conduct—the liberty grab—that is the moral predicate of just punishment. Because the paradigm individual never chose to commit a morally blameworthy act, society should not punish him with a device (the criminal justice system) that operates best, from a moral perspective, when its application is limited to parties who have grabbed for more gusto than their share allows.

This criticism is complicated by society’s nearly dogmatic systemic commitment to the proposition ignorantia legis neminem excusat—“ignorance of the law is no excuse.”[19] This maxim may be an impregnable—and largely sound—element of our criminal litigation system; at least, any alternative maxim could present problems of proof and might portend too much lawbreaking license. But overcriminalization is not a courtroom issue. It is a policy issue for legislators. In that arena, the anticipation that many people who could be prosecuted for the central-case offense will not have chosen selfishly to prefer their own will is a very good reason not to enact proposed strict liability criminal laws.

Criticism #4: Overcriminalization fails to encourage those who abide by the law.

The fourth criticism is a mirror image of the third. Fully understanding it depends upon a moral imperative as well as a practical exigency heretofore left implicit. The moral imperative is that punishment is necessary to avoid the injustice that would otherwise fester in the wake of any criminal’s unfair usurpation of liberty. This is society as victim. The practical matter is that punishment assures society that crime does not pay and that, by observing the law, the rest of society is not made into hapless losers. This is society as chump. Legal philosopher John Finnis explains this point more fully:

There is a need to give the law-abiding the encouragement of knowing that they are not being abandoned to the mercies of criminals, that the lawless are not being left to the peaceful enjoyment of ill-gotten gains, and that to comply with the law is not to be a mere sucker: for without this support and assurance the indispensable co-operation of the law-abiding is not likely to be continued.[20]

The central-case defendant—one who violates a strict liability regulatory offense—is punished without any evidence that he intended to violate the law, intended to engage in inherently wrongful conduct, or knew that his conduct was wrongful or prohibited by law. Nor is any evidence required that he violated a duty owed to another individual, to a group of individuals, or to society itself. Just as he can scarcely be accused of choosing to usurp liberty that society’s other members deny to themselves, they can scarcely be described as “suckers” for not doing likewise. Just as the central-case defendant had no real opportunity to choose to treat us unfairly, we have no real opportunity to choose to remain within the overall pattern of restraint marked out by law—or not to so choose.

Criticism #5: By eliminating the guilty-mind, or mens rea, requirement and by stipulating punishment for a morally innocuous act which the “wrongdoer” may never have chosen, the central case defies intelligent sentencing.

The fifth criticism turns to how retribution guides the competent lawmaker in creating a schedule of actual sentences. There are two very different faces to this picture, one well focused and the other blurry. Moral principles can tell the lawmaker that assault and theft, for example, should be treated as crimes and that those who commit these crimes should be punished, but moral principles—including those supplied by the retributive justification of punishment—do not by themselves tell the lawmaker which privations should be imposed for those crimes. Nor does moral principle tell the lawmaker how much of any specific privation—confinement, monetary fine, community service, civil disability—is just right.

There is, in other words, a very substantial range of free choice here for the lawmaker. This is the blurry part: The task at hand is guided, but underdetermined, by reason.

The clearer picture is this: A retribution-based understanding of punishment implies that any sentence be doubly proportional—first to the harm caused by the crime and second among the various crimes—so that the more egregious crimes are subject to proportionally greater sanction than lesser crimes. But how is one to distinguish large from small in this context?

No one thinks that the harm of a crime is mainly the tangible loss to a specific victim. If that were the case, then this nation would not have, for example, the many gradations of homicide that it does have, ranging from murder in the first degree all the way down to negligent homicide, then off the criminal chart entirely to actionable civil homicides, and then to cases in which one person causes the death of another without acting unlawfully at all. (The latter include genuine accidents and justified killings, such as those committed in self-defense.) Attempts to commit crimes—particularly the most reprehensible crimes such as murder, rape, kidnapping, and armed robbery—are generally punished at just a shade less than the punishment for consummated offenses. But if tangible, realized harm were the metric, then it would be hard to justify punishing attempts at all.

Clearly, the U.S. criminal justice system is predicated upon an understanding of crime as—in some very basic way—a matter of bad choices. By fleshing out those bad choices as unfair grabs of liberty, retribution helps supply a common measure of the harm done in every crime.

This is not to say that the more tangible damage done by a criminal’s bad choice does not matter at all. Someone who chooses intentionally to kill another human being has demonstrated an extraordinary preference for his own freedom of choice and has exercised it in gross disregard for the equal liberty and equal dignity of another person. This murderer’s usurpation is much greater and more heinous than that of the petty thief, and they should each be sentenced accordingly.

The final criticism, plainly stated, is that by eliminating the guilty-mind, or mens rea, requirement and by stipulating punishment for a morally innocuous act which the “wrongdoer” may never have chosen, our central case defies intelligent sentencing. The central case swings free of the proffered common metric and would seem destined to gauge an appropriate sanction either arbitrarily or by exclusive reference to the raw tangible damage wrought by the putatively criminal act.

—Gerard V. Bradley, a noted scholar in the fields of constitutional law and law and religion, is a professor of law at Notre Dame University and teaches in Notre Dame’s Trial Advocacy program.

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Prison Terms for Not Installing ADA Ramps?

Originally published at Cato Institute by Walter Olson | February 9, 2012

We’ve often deplored the continued push of criminal prosecution into matters that were once considered more suitable for regulation or for the operation of civil law. A little‐​noted report a few weeks back in the Los Angeles Times may indicate the next milestone in overcriminalization:

The U.S. attorney has launched a fraud investigation to determine whether Los Angeles city officials ignored federal laws designed to protect the disabled when building or fixing up housing. …


The investigation spans January 2001 to the present, the letters said. If violations are uncovered, city agencies that used federal housing funds could face financial penalties, lose out on future grants or possibly become the subject of a criminal investigation, said [city official] Bill Carter…

Disabled activists sought an investigation because, to quote the LAT again,

In testimony and in person, activists alleged that doors were sometimes too heavy for wheelchair users to open, elevators were not working in at least one city‐​funded building, and managers either refused to rent to wheelchair users or did not have apartments available for them, [advocate Becky] Dennison said.

The activists also felt ignored because various management recommendations they made to local officials had been ignored. They already have a right to file civil suits over their grievances: indeed, shortly after the U.S. Attorney’s investigation came to light three advocacy groups did file a civil suit against the city.


There are very real problems of fraud — plain old graft and money‐​raking — on the L.A. public housing scene. But the idea of redefining fraud to include ADA noncompliance is a different matter. If taken seriously, it would mean exposing ordinary as well as dishonest local officials across the country to the specter of criminal liability. It’s notoriously hard to assure that either new or renovated buildings are 100% compliant with ambitious interpretations of the law; a design fix that satisfies three ADA consultants may displease a fourth. Criminal liability should arise from very clear, preannounced standards of conduct. That’s not the ADA.


Maybe the U.S. Attorney’s office is just raising the criminal issue as a bit of bravado to please its friends in the advocacy world and strong‐​arm the city into settling. But as playwrights know, if a shotgun is shown above the fireplace in Act I, by the middle of Act III a shot will ring out. This misguided extension of federal fraud law is worth challenging now.

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Heritage Report: Overcriminalization: The Legislative Side of the Problem

Originally published at The Heritage Foundaton by Paul J. Larkin, Jr. | 12/13/11

Abstract: The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization.” This phenomenon is likely to lead to a variety of problems for a public trying to comply with the law in good faith. While many of these issues have already been discussed, one problem created by the overcriminalization of American life has not been given the same prominence as others: the fact that overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Indeed, Congress, for a variety of reasons discussed in this paper, is unlikely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. Therefore, the key to curbing overcriminalization is the American public: It is the people who, if made aware of the legislative issues that enable overcriminalization, could begin to head off such laws before the momentum for their passage becomes overwhelming.

The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization”—that is, the promiscuous use of the criminal law to remedy numerous perceived social ills by relegating them to the principal government actors in the criminal justice system (police, prosecutors, defense counsel, judges, and jailers) in order to regulate through criminalization. Four of the hallmarks of overcriminalization are:

  1. The use of strict liability crimes (i.e., offenses that dispense with the requirement that a person act with a “guilty mind,” however defined) to outlaw conduct, particularly in commercial and regulatory fields;
  2. The passage of several laws applicable to the same conduct, which enables prosecutors to multiply charges and thereby threaten a person with a severe term of imprisonment if he does not accept a plea bargain;
  3. The delegation to administrative agencies of the responsibility for filling in the details of a substantive criminal law, which thereby vests in the agency responsible for enforcing the law the power also to define its terms; and
  4. Enforcing through the criminal law conduct that, if it is to be enforced by the government at all, should be enforced through administrative or civil mechanisms.

This phenomenon is likely to lead to a variety of problems for a public that is trying to comply with the law in good faith. At bottom, the flaws in overcriminalization are much the same ones that the Supreme Court long has identified in unduly vague criminal laws: They render it impossible for an individual to understand where the line of criminality lies (indeed, the average person’s ability to understand and comply with a legal code varies inversely with its prolixity and reticulation); they empower prosecutors to make arbitrary charging decisions and coerce parties into pleading guilty by threatening them with potentially massive sentences should they stand trial; and, in cases that go to trial, they leave to the courts the job of deciding after the fact whether someone broke the law, a job that is tantamount to deciding whether to shoot the survivors.

Most of these problems have been discussed extensively in other publications, such as “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” a report prepared by The Heritage Foundation and the National Association of Criminal Defense Lawyers.[1] But one problem created by overcriminalization of American life has not been given the same prominence as the ones noted above: Overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Those difficulties are discussed here.

Legislative Limitations

Legislators have few options in addressing criminal justice problems. To start, they cannot get involved in the decisions in a specific case. The Due Process Clause of the Constitution quite rightly keeps legislators from meddling with specific defendants in particular cases, and any attempt to do so can (at least potentially) compromise the government’s ability to prosecute that party.

Passing legislation, approving law enforcement agencies’ budgets, and conducting public oversight hearings are the principal tools that legislators can employ to affect the crime rate, but those options have their limitations. The last two options work only indirectly by, for example, increasing the number of investigative and support personnel or spurring the existing ones to do a better job. Only through legislation creating new crimes, upping the sentences for offenses already on the books, or reducing the procedural or evidentiary burdens on the police and prosecutors can a legislator have a direct effect on crime.

Even then, however, there are additional limits. The Ex Post Facto and Bill of Attainder Clauses (Art. I, §9, Cl. 3 and § 10, Cl. 1) keep legislators from pursuing the most direct ways to deal with crime: passing a new criminal statute making past conduct an offense, retroactively enhancing the penalties already on the books, or making an outlaw out of a specific individual in a statute itself.

Each of these limitations serves legitimate, important purposes. Ironically, though, they sometimes can wind up channeling legislators into waters that create problems at least as serious as the ones that the U.S. Constitution seeks to avoid.

A New Set of Problems

Since the 1960s, the Supreme Court of the United States has regulated the investigative and trial processes. Using the Fourth, Fifth, and Sixth Amendments as the vehicles, the Court has fenced in nearly every investigative and trial technique—e.g., searches, seizures, arrests, interrogation, lineups, discovery, questioning or immunizing defendants and witnesses, and so forth—with a variety of different rules. The Court also has made clear that Congress cannot tamper with the rules it has created, such as the now-(in)famous Miranda warnings.[2]

But the Court has left unregulated the legislature’s prerogative to define crimes and affix punishments, as well as a prosecutor’s ability to exercise discretion in charging and plea bargaining. As the late Harvard Law School Professor William Stuntz has noted, the result is that, in today’s criminal justice system, those two players have become closer allies than ever.[3]

Here is how such an alliance develops: Some legislators, acting on the presumption that prosecutors will exercise judgment in deciding how far to push the edge of the envelope, will write broadly worded statutes in order to maximize the prosecutor’s discretion. Other legislators, assuming (and perhaps hoping) that expanding criminal liability will affect only those near the periphery of the laws in existence, also will support expanded criminal liability and lengthier sentences because they, too, do not expect prosecutors to go hog wild with their enhanced weapons.

The result is that even legislators acting solely with the public interest in mind will wind up enacting new criminal laws that no one expects to receive the broad construction that their text permits. Of course, other, perhaps less noble-minded legislators will see the process as a no-lose situation: They create the appearance of having remedied a social ill without any risk of a backlash from a politically powerful constituency and without the burden of deciding how to apply the law on a case-by-case basis.[4]

By contrast, there is little constituency for cutting back on the reach of the criminal law. Loosening criminal procedures can be justified on the grounds of de-handcuffing the police or bolstering the efficiency of the trial process. Tightening those same procedures can be supported by the need to protect the innocent or everyone’s civil rights. Broadening the reach of the criminal law can be sold as an effort to reach miscreants that the courts mistakenly (or involuntarily) let walk or as an attempt to adapt old laws to new criminal schemes. That much is fairly straightforward.

What argument, however, will persuade legislators to cut back on a prosecutor’s or court’s generous reading of a criminal statute or to reduce the number of years of imprisonment that a law authorizes? That the legislature previously got it wrong? That the courts erred in sending guilty people to jail? That the prosecutor abused the authority that the legislature gave him and the courts upheld? After all, the courts are widely seen as being experts in interpreting criminal laws; legislators ordinarily support prosecutors’ desire to maximize the weapons at their disposal in the interest of fighting crime; prosecutors ordinarily serve the public good when making charging and plea decisions; and, if the law were unquestionably just and justly prosecuted without exception, there might be no better example of letting the guilty go scot-free.

As a result, few legislators may see any benefit from being “soft on crime,” and if legislators do not care about overcriminalization, why should the public?

“Hard” vs. “Soft” on Crime: A Misguided Legislative Tendency

Why is the legislative tendency toward overcriminalization misguided? There are three short answers.

First, there is the principle that Chief Justice John Marshall articulated in Marbury v. Madison in 1803: “The Government of the United States has been emphatically termed a government of laws, and not of men.”[5] Leaving the interpretation of criminal laws to regulatory agencies, prosecutors, and courts turns that proposition on its head. The legislatures themselves should define the laws so that the average person knows just where the line is that divides lawful from unlawful conduct and just how closely it can be approached.

Second, having overly broad laws or laws whose elements are filled in by politically unaccountable regulators runs afoul of the criminal law tenet, traceable to the laws of the ancient Greeks and often voiced in the Latin expression nulla poena sine lege, that there is no punishment without law.[6] A law that is not readily available to or understandable by the average member of the public is tantamount to no law at all. In fact, the proposition that the public should be able to—and can—find, read, and understand the law, particularly the criminal law, is the moral foundation for the well-known proposition that “ignorance of the law is no excuse.” Take away the practical ability to read and understand the law, and the moral justification for using the criminal law as a tool for regulating conduct is also lost.

Third, making the same conduct a crime under numerous federal criminal statutes allows a prosecutor to threaten a defendant with a potentially massive sentence if he forgoes a plea offer and goes to trial.[7] Absent case-specific proof of racial animus or some other invidious intent, the Constitution does not bar a prosecutor from making good on his promise to throw the book at a defendant who declines a plea offer.[8] Thus, there is a good deal to be said for reining in the overcriminalization process.

There is one other point worth raising separately: The modern practice of making more and more conduct criminal or upping the penalties already on the books for existing crimes can be a misguided way to run a railroad. There already are thousands of federal criminal laws on the books—so many, in fact, that no one knows exactly how many there are.[9] But Senators and Representatives introduce bills that would create new crimes during every session of Congress.

Why? Are the laws on the books inadequate to the task? There is no doubt that technical or scientific advances (e.g., computers) can require new criminal legislation to address novel problems, and changing societal mores can justify revisiting familiar laws (e.g., spousal abuse). But does this nation really need dozens of laws (with more recommended by each new Congress) dealing with lying, cheating, stealing, and fraud?[10] Does America need to add a criminal penalty for the violation of every new commercial, safety, and environmental law? Does adding to the length of the terms of imprisonment for old crimes truly add anything to the retributive, deterrent, and incapacitative effect of the law? If it does, is that benefit worth its costs?

Perhaps legislators should turn their attention to engaging in oversight of the federal, state, and local law enforcement agencies that they arm with new weapons every time one of those bills is signed into law. Perhaps legislators should inquire what beneficial effect society is getting from the legal changes that have occurred over the past quarter-century before adding to the corpus of criminal law. Perhaps legislators should conduct, or demand that someone else accomplish the task of completing, a cost-benefit analysis of the existing body of criminal law before making it bigger.

That type of work is difficult and takes a long time to do well, but maybe it is more important than simply passing a new criminal law and declaring victory over, or even just taking credit for dealing with, a particular crime problem.

Public Awareness: The Key to Combating Overcriminalization

The Supreme Court has rewritten the rules of investigation and trial practice, and those rules will keep some innocent parties from being wrongly convicted, but regulating the procedure used by the police and lawyers will accomplish only so much. As long as lawmaking, charging, and plea bargaining are off-limits to the courts, there will be a risk that innocent parties will be charged with conduct that cannot and should not reasonably be deemed a crime but that exposes them to such a terrifyingly long prison term that, as a practical matter, they have little choice but to accept a plea deal offered by the prosecutor.

The legislative dynamic is not likely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. The public needs to head off such laws before the momentum for their passage becomes overwhelming. And that can happen only if the public is aware of the legislative side of this problem.


—Paul J. Larkin, Jr., is Senior Legal Fellow and Manager of the Overcriminalization Initiative in the Center for Legal and Judicial Studies at The Heritage Foundation.

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In Jail for Backed-Up Toilets

Originally Published at National Review by Shannen W. Coffin December 12 2011

The Wall Street Journal has a powerful illustration today (subscription required) of the problem of overcriminalization of federal law and the related problem of strict liability crimes. It tells the story of Lawrence Lewis, a maintenance engineer at a military retirement home in D.C., who pled guilty to misdemeanor violations of the Clean Water Act and its implementing regulations — all for discharging a backed-up sewer line into a city storm drain to prevent flooding in an area on the property where, according to the story, the sickest residents lived. Lewis mistakenly thought the storm drain emptied into the D.C. sewer system, when in fact it emptied into Rock Creek, a tributary of the Potomac River. 

Since the government is not required to prove guilty intent (mens rea) as part of its case for this regulatory violation, Lewis’s good faith was no defense to his “crime.” (The government’s own pleadings in his case admitted that Lewis did not knowingly dump waste into the creek). So, like many faced with the weight of a federal prosecution, he decided that taking a plea was the better course.

After a fine and probation, Lewis now has a criminal record for the first time in his 60 years (an assault arrest in his youth did not result in a conviction). He summed it up best in describing his incredulousness at being booked from such an insignificant and unintended federal crime:  “Imagine what I looked like. ‘What you in for? Backed up toilets.’”

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The Foreign Corrupt Practices Act: Clarification Is Not Enough

Originally published at Cato Institute by Walter Olson | November 11, 2011

The Foreign Corrupt Practices Act, enacted in 1977 and the subject of a high‐​profile federal enforcement campaign in recent years, is a feel‐​good piece of overcriminalization that oversteps the proper bounds of federal lawmaking in at least four distinct ways, any of which should have prevented its passage. It is extraterritorial, purporting to punish overseas misdeeds which deprive no Americans of liberty or property and whose punishment is better left in the hands of authorities elsewhere. It is vicarious, inflicting massive liability on businesses and unknowing higher‐​ups over the actions of rogue local subsidiaries, salespeople and facilitators. It is punitive, menacing its targets with twenty‐​year prison terms and inflicting huge penalties over less‐​than‐​huge misbehavior. And finally, it is vague, leaving companies to guess at the proper line between tolerated payments (e.g., gratuities to speed up visa and license issuance in developing countries) and improper “bribes,” and even such basic questions as who counts as an “official.” In the face of a mounting outcry from the business community, the Obama administration has now finally conceded that there is some validity to this last point, and Criminal Division chief Lanny Breuer says the Department of Justice will develop guidelines to provide greater clarity as to what it believes the law does and does not forbid. Better than nothing, but why not consider the case for wider reform or even repeal?


To begin with, it’s hardly as if the law has succeeded in cleaning up the climate of official corruption that afflicts so many ill‐​governed countries around the globe. It does, however, confer a huge competitive advantage on companies not within the reach of the U.S. Department of Justice, above all those of China, which does not even pretend to apply similar rules to its overseas enterprises, and also including Europe, which has mostly chosen to address the problem in less adversarial ways. (See, for example, this Economist editorial on Britain’s FCPA‐​equivalent.)


Chicago‐​Kent law professor Andy Spalding has argued that the FCPA in fact amounts to a form of unintended economic sanctions against developing countries, sometimes with “tragic” and anti‐​humanitarian results. Guest‐​posting at PrawfsBlawg, Spalding offered the example of India, where a poor rural population stands in desperate need of roads:

India lacks the financial and administrative (or authoritarian?) capacity to build the needed roads, so it has aggressively solicited outside investors. Nonetheless, of all public requests for road construction proposals in India, almost half receive absolutely no bids. No one is willing to build these roads, at any price. Why aren’t more U.S. construction companies seizing this profit opportunity? Answer: corruption. The infrastructure sector is notoriously corrupt; the FCPA risks are far too high.


Query: if the criminal penalties now associated with FCPA enforcement have made the costs of building roads in developing countries prohibitive, such that roads aren’t built, farmers can’t sell, and kids can’t eat, have we done the right thing?

More on FCPA at Overlawyered and at my former website Point of Law.

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Gibson Guitar Raid: Much to Fret About

Originally published at National Review by Pat Nolan

Federal prosecutors are proving themselves too highly strung.

With military precision, the federal officers surrounded the building, donned flak jackets and helmets, readied their weapons, burst in, and forced terrified employees out at gunpoint. Officers ransacked the facility, seizing computers, papers, and materials.  TOP ARTICLES4/5READ MOREDisney CEO Bob Iger Steps Down

It was the second raid in three years by the Fish and Wildlife Serviceon Gibson, maker of the famous Les Paul guitar. The situation would be laughable, if the consequences for Gibson weren’t so dire.

The law that Gibson allegedly violated is the Lacey Act, which bars importation of wildlife or plants if it breaks the laws of the country of origin. It was intended to stop poachers. The ebony and rosewood that Gibson imported was harvested legally, and the Indian government approved the shipment of the wood. But Fish and Wildlife bureaucrats claim that, because the wood was not finished by Indian workers, it broke Indian law. In other words, a U.S. agency is enforcing foreign labor laws that the foreign government doesn’t even think were violated.

#ad#“In two cases we had a SWAT team, treating us like drug guys, come in and shut us down with no notice,” lamented Gibson chairman and CEO Henry Juszkiewicz. “That’s just wrong. We’re a business. We’re making guitars.” Juszkiewicz says the raid, seizures, and resulting plant closure cost Gibson more than $1 million.

This abusive treatment of a legitimate business like Gibson is not an isolated incident. Small businesses have been similarly raided, and their officers imprisoned, for such minor offenses as importing lobster tails in plastic rather than cardboard (three men were given eight-year prison sentences) and sloppy labeling on imported orchids (the accused was given a 17-month sentence).

The Gibson assaults are further evidence that America’s criminal-justice system has strayed far from its central purpose: stopping the bad guys from harming us. SWAT-team raids were designed to arrest notoriously violent gangsters, and stop them from destroying evidence. Now, the police powers of the state are being used to attack businesses. (Were the feds afraid that the Gibson workers would flush the guitars down the toilet?)

It is time to get the criminal law back to basics. Fighting terrorism, drug cartels, rapists, and murderers is enough to keep law enforcement busy. To expand that fight to include such esoteric social causes as protecting Indian workers dilutes the resources needed to fight real crime. Why do we care who finishes the wood on guitars? And why are we applying the power of the state in its rawest form to enforce Indian labor laws?

Prosecutors who are looking for an easy “win” know that businesses roll over. A public raid on its offices, or an indictment of its officers, can destroy a business’s reputation and viability. That makes the owners easy to intimidate into a plea bargain.

If they choose to fight, they face the full wrath and fury of the feds. In the Gibson raids, the SWAT teams were deployed even though Gibson had offered its full cooperation to investigators. Such raids are increasingly used to intimidate citizens under suspicion. The orchid importer, a 65-year-old with Parkinson’s, was shoved against a wall by armed officers in flak jackets, frisked, and forced into a chair without explanation while his home was searched.

The government also attempts to get low-level employees to “finger” their bosses. For example, the feds threatened Gibson employees with long prison sentences. This is not a search for truth, but an immoral attempt at extortion to win convictions. Investigators examine the lives of “little fish” and use minor, unrelated violations (smoking a joint, or exaggerating income on a loan application) to pressure them to back the government’s case against their employers. Mobsters have experience with threats like this, but a secretary or an accountant is scared to death by the threat of prosecution.

A favorite ploy of prosecutors in these cases is to charge defendants with false statements based on their answers to the investigators. The sentence for this can be five years in prison. No recording is made of the interviews — in fact, the feds prohibit taping the interviews — and the agents are not stenographers. They cannot possibly recall the exact wording of the questions and the answers. Yet after the interview, they will produce a “transcript” replete with quotes throughout. And if a witness says he did not actually say what the agent put in quotes, it is the witness’s word against a fine, upstanding federal agent’s. Staring at a five-year sentence will get most people to say whatever the government wants them to.

The feds also pile up charges. According to Juszkiewicz, the Justice Department warned Gibson that each instance of shipping a guitar from its facility would bring an added charge of obstruction of justice. Prosecutors routinely add extra counts to stack potential prison sentences higher. For instance, faxing invoices for the wood would be charged as wire fraud. Depositing the check for the sale of the guitars would be money laundering. The CEO’s telling the press he is innocent would bring charges of fraud or stock manipulation. The intent is to threaten such long sentences that the targets plead guilty rather than risk decades in prison.

Prosecutors further tighten the screws by seizing the assets of the company, a tactic once used against pirates and drug lords but now routinely used to prosecute white-collar crimes. The federal agents seized six guitars and several pallets of ebony during their initial 2009 raid against Gibson. Federal law allows assets to be seized not just from convicted criminals, but also from those never charged. Owners must prove that the forfeited property was obtained legally; otherwise, the government can keep it. That gives the government incredible leverage, because without the seized inventory and bank accounts, the business will most likely go under. How can Gibson make guitars if the wood is being held by the government? How can it service customers when the government took its computers as evidence? How can it pay lawyers when its bank accounts were seized? Asset forfeitures bring to mind a similar twist on the law uttered by the Queen of Hearts in Alice in Wonderland: “Sentence first, verdict afterwards.”

America has become overcriminalized.The Gibson raids highlight how America’s criminal-justice system has become a Rube Goldberg contraption of laws and sentencing policies that have no consistent focus — and there is little relationship between the length of the prison sentence and the harm caused by a violation.

When the Constitution was adopted, there were three federal crimes: treason, piracy, and counterfeiting. Now, there are more federal crimes than we can count — literally. The Congressional Research Service tried to tally the number of crimes sprinkled throughout federal codes, but gave up at 4,450. That does not include more than 10,000 regulations that carry criminal penalties. It’s a wonder anyone can survive 24 hours without violating some obscure statute or rule.

And while Gibson has yet to be formally charged, why would the government choose to pursue the company under criminal laws, seeking to send the officers of the company to prison? The power to imprison is the one of the most severe authorities we cede to government. The lives of incarcerated people are not their own: They cannot choose where to live, with whom to associate, when to eat, or what to do with their time. Because it carries such harsh sanctions, criminal law has always been reserved for morally reprehensible acts such as murder, rape, arson, and robbery.

However, federal bureaucrats no longer feel constrained to limit criminal prosecutions to blameworthy actions that virtually everyone in society would agree are morally wrong. After all, in the age of moral relativism, who is to say what is moral or not? Instead, this moral basis of the law has been cast aside in favor of a broad authority to criminalize conduct that Congress (or, more likely, a mere handful of legislative staffers or agency bureaucrats) decides is “wrong.” Whereas behaviors were once criminal because they were inherently bad, modern law makes certain actions criminal merely because a majority of legislators think they should be prohibited, and criminal sanctions are imposed to make it clear the lawmakers really, really don’t like the conduct.

By unpinning criminal law from its moral roots, we now impose the harshest sentences on activities that are deemed improper by those with the loudest voices. Thus, the lobster fishermen who shipped their catch in the improper containers received longer sentences than some murderers. And Gibson is raided by federal commandos not because the company poses a threat to anyone, but merely because the American government has found it to be in violation of India’s labor laws.

This is government by whim, and these “whim” crimes are not based on evil intent. In fact, they require no intent at all. They are “strict liability” crimes — you don’t have to know you are acting unlawfully to be sent to prison.

#ad#The Heritage Foundation points out that “a core principle of the American system of justice is that no one should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful.” These whim laws have discarded the centuries-old requirement of mens rea, or guilty intent. From today’s perspective, the old adage “ignorance of the law is no excuse” assumes that it is possible to know all the intricacies of tens of thousands of federal statutes and regulations. Nonetheless, if we inadvertently violate one of them, we face years in prison. We are modern Gullivers, tethered to the ground by the sinews of the criminal law.

Fortunately, many are fighting against this distressing trend. Groups as diverse as the Heritage Foundation, the American Civil Liberties Union, Prison Fellowship, the Cato Institute, and the National Association of Criminal Defense Lawyers have joined forces under the leadership of former Attorney General Ed Meese to fight the overcriminalization of America.

Meese is also active in Right on Crime, a group of leading conservatives working to apply free-market, conservative principles to the criminal-justice system. Some of the prominent conservative signatories of the Right on Crime Statement of Principles are Bill Bennett, Jeb Bush, Newt Gingrich, Asa Hutchinson, Chuck Colson, and Grover Norquist. We believe that “criminal law should be reserved for conduct that is either blameworthy or threatens public safety, not wielded to grow government and undermine economic freedom.” Congress needs to rein in runaway federal prosecutors who are threatening legitimate businesses. They can start by bringing DOJ officials before a public hearing to inquire into the raids, and ask some questions. What criteria does the DOJ use to send in a SWAT team when a subpoena would suffice? Why is it a priority of U.S. law enforcement to enforce Indian labor laws that India is not enforcing? Why doesn’t federal policy require that interviews be recorded?

Alexis de Tocqueville warned that the greatest danger to a democracy was “soft despotism”:

It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

Congress needs to act quickly before the federal government compresses, enervates, extinguishes, and stupefies us. They need to bring our criminal laws back to basics: Get off the backs of businesses and keep us safe from truly dangerous and morally wrongful behavior.

— Pat Nolan is vice president of Prison Fellowship and director of its criminal-justice-reform division, Justice Fellowship.

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EPA Overkill

Originally published at National Review by  HANS A. VON SPAKOVSKY | 9/16/2011

Everyone knows about the FBI’s famous “Ten Most Wanted” list. The current roster includes murderers, racketeers, kidnappers, drug smugglers, and armed robbers — criminals who represent real dangers to society.

But did you know that the Environmental Protection Agency also has its own FBI-type list of 18 most-wanted environmental fugitives? Their menacing violations include “multiple counts for the blending of motor fuel” (oh my!), selling “R-12 Freon, an ozone depleting substance” (gadzooks!), importing “automobiles that did not meet” U.S. emissions standards (horrors!), giving “indications that the oil-content monitor downstream of the [freighter] vessel’s oily-water separator had been bypassed” (heavens to Betsy!) and aiding and abetting “false entries into an Oil Record Book” (bring out the guillotine!).

The EPA website presents the entire list of these wily, dangerous criminals, complete with downloadable “Wanted Posters.” (I kid you not.) And the EPA website warns: “Do not attempt to apprehend any of these individuals.” My goodness — one of them might spray you with Freon or put a false entry in the maintenance records you keep for your car on how often you change the oil.

The Heritage Foundation has an entire project on overcriminalization, the alarming trend in Congress to try to use criminal law to solve every problem, punish every mistake, and generally coerce Americans into conforming their behavior to satisfy liberal social-engineering objectives. Criminal law is supposed to be used to punish dangerous conduct deserving of the greatest, most substantial punishment. For less serious, less dangerous activities, we’re supposed to use civil penalties. Especially disturbing is the way in which Congress has, over the years, given federal regulatory agencies such as the EPA the ability to criminalize conduct through regulations. Only Congress should have the power to determine what type of intentional and knowingly wrongful conduct is deserving of criminal, as opposed to civil, punishment, and criminal punishment should be the exception rather than the norm.

Maintaining a clean environment is an important public-policy objective. And there is no doubt that there are occasionally serious violations of our environmental laws that should be pursued by the federal government. But creating a most-wanted list for these types of environmental violations, something that the FBI has used to hunt down truly dangerous criminals (and terrorists like Osama bin Laden), trivializes the seriousness of criminal-most-wanted lists and makes a mockery of environmental law. It also makes the EPA look like an out-of-control federal agency that should be featured in National Lampoon or The Onion.

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The Legal Consequences of Saving a Baby Woodpecker

Originally published at Cato Institute by Walter Olson | August 2, 2011

Federal law makes it illegal to “take,” “possess,” or “transport” a migratory bird except under permit. If you worry that this sweeping language might give the federal government too much enforcement power, perhaps you are one of those horrid House Republicans who, according to Bryan Walsh in Time magazine, are in the grip of “antigreen ideology” and want to “essentially prevent” agencies like the Department of the Interior “from doing their jobs.” Who else would object to laws meant to protect Nature?

It’s a pretty safe bet that Walsh hasn’t met the Capo family of Fredericksburg, Virginia. According to a report on broadcast station WUSA, and now being picked up far and wide by other news outlets, 11‐​year‐​old Skylar Capo saved a baby woodpecker in her back yard from the family cat and decided to keep it for a day or two to make sure it wasn’t injured before letting it go. The family’s problems began when Skylar took the bird into a Lowe’s to keep it out of the hot sun and was spotted by a woman in the store who confronted her and said she was a Virginia state game officer. Two weeks later, says Skylar’s mother Alison, the woman showed up at their front door accompanied by a state trooper with the news that the family owed a fine of $535; the federal law also carries possible jail time. (The bird itself was long gone by this point, having been released the same day of the store visit, the family says.)

With publicity about the case hitting the wires, the U.S. Fish and Wildlife Service has now announced that it has rescinded the fine—the ticket had been mistakenly issued, it insists, in spite of a decision not to pursue charges. That also presumably takes care of the worry about jail time. But really, if you’re the parent of a youngster fascinated by backyard wildlife, why take chances? Order them back indoors to play video games and watch TV. It’s much legally safer that way.

For more from Cato on overcriminalization, see posts like this, this, and this.

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Doing Violence to the Law: The Over-Federalization of Crime

Originally published at The Heritage Foundation by Brian W. Walsh | 6/9/2011

The rapid expansion of federal criminal law, beyond almost all prudential and constitutional limits, may not be the first thing to leap to mind when one thinks of key problems with American criminal law. But the existence now of over 4,450 federal criminal offenses is itself a problem that implicates the foundations of the criminal law. The number of federal offenses is too great for Ameri­cans to be familiar with all of the conduct that is criminal, and many of the offenses themselves are deeply flawed, omitting essential substantive elements necessary to pro­tect the innocent. As a result of these flaws, the federal criminal code fails to serve what may be its most impor­tant function, which is not to expose and punish the relatively few persons who consciously choose to engage in criminal conduct, but to inform citizens of the law’s requirements, thereby equipping them to avoid the con­duct deemed worthy of society’s most severe penalty and moral censure.

The explosion of the federal criminal law—both in the number of offenses and their overall scope—demands that legal reformers revisit basic assumptions about what crimi­nal law is and how best to rein in its actual and potential abuses. Over the last forty to fifty years, government at all levels has succeeded in convincing Americans that the criminal law is whatever legislators define it to be. Ill­ conceived new criminal offenses occasionally raise an eye­brow or two, but Americans generally accept their legitimacy. The result is that Americans have come to rely, consciously or not, on the good graces of prosecutors and the laws of probability to shield them from prosecution. When lightning does strike and an otherwise law-abiding citizen is charged and convicted for conduct that is not traditionally criminal or necessarily even wrongful, most Americans convince them­selves that the accused must have done something to warrant the prosecutor’s attention. Yet while Americans remain incredulous that improper criminal laws could be used to convict someone who had no intention of doing anything wrongful, the reality is otherwise.

I. Substantive Protections

“An unjust law is a code that is out of harmony with the moral law,” wrote Martin Luther King, Jr., who had no lit­tle experience with unjust law. Many federal criminal offenses fall far short of this standard because they do not require an inherently wrongful act, or even an act that is extraordinarily dangerous. In the days when average citi­zens were illiterate, they could still know and abide by the criminal law. At that point, most criminal offenses addressed conduct that was inherently wrongful­—malum in se—such as murder, rape, and robbery. That is no longer the case. Most of today’s federal offenses crimi­nalize conduct that is wrong only because it is prohibited—malum prohibitum.

Worse, many of these prohibitions are actually contrary to reason and experience, giving average Americans little notice of the content of the law. For example, few would imagine that it is a federal crime for a person to violate the terms of service of an online social networking site by reg­istering with a fake name, as a recent federal indictment in Los Angeles alleges. Indeed, many Americans might instead expect this behavior to be protected, for it pro­motes privacy and anonymity and, by extension, the personal safety of vulnerable users. Another example: Unauthorized use of the 4-H organizations logo is a fed­eral crime. There are undoubtedly reasons that these laws are on the books, but they are not reasons that average law-abiding Americans would be likely to anticipate when trying to conform their conduct to the law’s requirements.

Exacerbating the criminalization of an ever-increasing array of behavior that is not inherently wrongful is the crumbling of traditional protections in the law for those lacking wrongful intent. Historically, a criminal conviction required that a person both

committed an inherently wrongful act that consti­tuted a serious threat to public order, and did so with a guilty mind or criminal intent, that is, mens rea.

These two substantive components were essential for con­viction in almost all criminal cases from the time of the American founding through the first decades of the 20th century.

But over the past few decades in particular, Congress has routinely enacted criminal laws that lack mens rea requirements or that include mens rea requirements that are so watered down as to provide little or no protection to the innocent. As a result, honest men and women increas­ingly find themselves facing criminal convictions and prison time. This happens even when their “crimes” are inadvertent violations that occur in the course of otherwise lawful, and even beneficial, conduct.

Despite increasing attention to this problem in recent years, the trend is for fewer and weaker mens rea require­ments. In a recent study, Professor John Baker found that seventeen of the ninety-one federal criminal offenses enacted between 2000 and 2007 lacked any mens rea requirement whatsoever. The Heritage Foun­dation and the National Association of Criminal Defense Lawyers will soon publish the results of their joint research into the mens rea provisions in bills introduced in the 109th Congress. Preliminary findings reveal that the majority of those offenses lack a mens rea require­ment sufficient to protect from federal conviction anyone who engaged in the specified conduct but did so without criminal intent.

Many lawyers seem to accept uncritically the idea that any act made criminal by a legislature is, by that fact alone, an actus reus. But to accept that definition is to obliterate the meaning of actus reus, for the term would be a mere synonym for “act that has been made criminal.” The prob­lem may be best illustrated using some of the “criminal” laws made and enforced by totalitarian regimes. For exam­ple, in some communist countries it was deemed a “criminal” act for relatives of politically or religiously perse­cuted persons to discuss their relative’s persecution, even in private and even with other family members. In some regimes, any type of unauthorized communication with a foreigner was deemed a “crime.” Regardless of any elabo­rate (or convoluted) logic and rhetoric that may be used to justify criminalizing such conduct, it is evident that there is no actus reus in these so-called crimes.

Similarly, but to a lesser extreme, when Congress makes it a federal crime to violate any foreign nation’s laws or regulations governing fish and wildlife—as it has done in the Lacey Act—many violations will be “crimes” that include no actus reus. Some of those foreign regula­tions may do nothing more than protect the foreign nation’s local business interests. For example, the fishing regulations of a small Central American nation might require fishermen to package their catch in cardboard, perhaps only in order to stimulate business for a domestic cardboard manufacturer. If a fisherman then packs his catch taken in that nation’s waters in plastic rather than cardboard and imports into the United States—in viola­tion of the express terms of no federal or state law of the United States—is there a real actus reus? Answering yes leads to the absurd conclusion that Congress could, with a single sentence in a single legislative act, make it a crime to violate any and every law of every nation on earth—and that every such offense thereby includes a meaningful actus reus. Such may be positive law, but they are not “crimes” in the truest sense of the word; they are merely legislatively created offenses that are unworthy of any free nation’s criminal law.

The size of the federal criminal law compounds these problems and undermines other protections. The Princi­ple of Legality, for example, holds that “conduct is not criminal unless forbidden by law [that] gives advance warning that such conduct is criminal.” The sheer num­ber and disorganization of federal criminal statutes ensures that no one could ever know all of the conduct that has been criminalized. Those who have tried merely to count all federal offenses—including both Professor Baker and the Justice Department itself—have been able to provide only good estimates. The task proves impossi­ble because offenses are scattered throughout the tens of thousands of pages of the United States Code (not to men­tion the nearly 150,000 pages of the Code of Federal Regulations). If criminal-law experts and the Justice Department itself cannot even count them, average Amer­icans have no chance of knowing what they must do to avoid violating federal criminal law.

II. The Threat to Liberty

The power to punish criminally—including the depriva­tion of one’s personal liberty and even one’s life—is the greatest power that government regularly exercises with respect to its own citizens. As Professor Herbert Wechsler famously characterized it, criminal law “governs the strongest force that we permit official agencies to bring to bear on individuals.” Perhaps the central question that the Framers of the Constitution and the Bill of Rights debated, and to which they gave painstaking considera­tion, was how best to protect individuals from the unfettered power of government. They were well acquainted with abuses of the criminal law and criminal process and so endeavored to place in our founding docu­ments significant safeguards against unjust criminal prosecution, conviction, and punishment.

In fact, they understood so well the nature of crimi­nal law and the natural tendency of government to abuse it, that two centuries later, the most important procedural protections against unjust criminal punish­ment are derived directly or indirectly from the Constitution itself, specifically the Fourth, Fifth, Sixth, and Eighth Amendments.

But despite these protections, the wholesale expansion of federal criminal law—both as to the number of offenses and the subject matter they cover—is a major threat to Americans’ civil liberties. Each time Congress crafts a criminal law covering a new subject matter, it effectively expands the power of the federal government. And the types of crimes that Congress now often creates—lacking a true actus reus or a meaningful mens rea requirement­—can effectively circumvent the Bill of Rights’ procedural protections.

Of similar concern, criminal offenses that exceed the limits of Congress’s limited, enumerated power are breaches of one of the primary structural limitations that constitutional federalism imposes on the federal govern­ment. After countenancing for decades Congress’s almost unlimited criminalization of conduct that is inherently local in nature (as long as, that is, the Constitution’s Com­merce Clause was invoked to justify the assertion of congressional authority) the Supreme Court rediscovered constitutional limits in United States v. Lopez and United States v. Morrison. In both of these cases, the Court explained that such limits on federal commerce power are consistent with and flow from the fact that Congress is a body of limited, enumerated powers.

The federal offense of carjacking is a quintessential example of Congress’s overreaching assertions of federal criminal jurisdiction. The federal carjacking offense is cur­rently defined as taking a motor vehicle “from the person or presence of another by force and violence or by intimi­dation.” The federal jurisdictional “hook” for this carjacking offense is that the vehicle must have been “transported, shipped, or received in interstate or foreign commerce,” but how many vehicles have not? Actual com­missions of carjackings take place almost uniformly within a single locale of a single state, yet federal crimi­nal law now purports to authorize federal prosecutors to be the ones to charge and prosecute local carjackings. Such breaches of constitutional federalism are not mere breaches of technical and theoretical niceties, for the power to criminalize is the power to coerce and control. The purpose of constitutional federalism is akin to the purpose of limited government itself: to guard against accumulation of power by a single sovereign—i.e., the fed­eral government—as a “double security . . . on the rights of the people.” Thus, if there were no limits on Con­gress’s power to criminalize, there would be no limits on the power of the federal government to coerce and control Americans.

III. Prospects for Reform

The “overcriminalization” problem is so widespread and pervasive that it is tempting to think that reform is futile. But there is reason to hope that Congress may change its ways. The over-federalization of crime is not a partisan issue, and both major parties stand to benefit from fight­ing over-federalization once the public is better educated about the problem and its implications. With regard to the criminal law, Democrats generally recognize that the power to make laws and decisions about the enforcement of those laws should reside as closely as possible to those who will be most affected. Washington should in most cases not be dictating which members of the community should be locked up and for what conduct. Many Republi­cans tend to view constitutional federalism as a check on the unwarranted and potentially dangerous accumulation of power by a central government. Once they understand the mechanics and implications of the over-federalization of crime, Americans who support either party are likely to understand over-federalization as a grave threat to their rights and liberties.

Although most members of Congress remain prone to viewing their being “tough on crime” at the federal level as a hedge against unemployment, that tide is turning. Influ­ential Senators and Representatives of both parties are beginning to recognize the real-world effects of the over-­federalization of crime on individuals and communities in their home states and districts. Certainly nothing requires Congress to legislate to the full extent allowed by the Supreme Court’s Commerce Clause jurisprudence. Some members of Congress thus have begun to work to change the political environment and block bills that would expand the reach of federal criminal law beyond prudential or constitutional limits. These leaders include Representatives John Conyers (D-MI), Louie Gohmert (R-TX), and Bobby Scott (D-VA) as well as Senators Jeff Sessions (R-AL) and Sam Brownback (R-KS). The projects of all those who advocate for the reform of federal criminal law would be advanced by reaching across real and per­ceived political boundaries to shape a coalition working to ensure that all new criminal offenses adhere to the funda­mental principles of sound criminal law.

In the long run, no one benefits when the federal government indiscriminately criminalizes conduct without regard to prudential and constitutional limitations. Perversely, overcriminalization undermines the rule of law over time, even as it chips away at liberty. Narrow special interests that pressure Congress to add criminal offenses that are not warranted by constitutional norms or prudence play a dangerous game with our freedoms. No one, Democrat, Republican, or otherwise, should countenance it.

Brian Walsh is a senior fellow at The Heritage Foundation.

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Overcriminalized America

Originally published at National Review by Mahsa Saeidi-Azcue | May 2, 2011

Too many people are being prosecuted for too many acts.

Well, our bold and spunky congressional pals finally crossed the line. They spent our tax dollars so carelessly, and at such an alarming rate, that we were forced to stage what amounted to a national public fiscal intervention. Suddenly, the boring federal budget became big news, as Americans demanded that Washington restore our nation’s economic health and cut all wasteful and inappropriate spending, including the government funding of NPR and Planned Parenthood. This signal from the citizens was valuable despite an eventual Republican surrender in the most recent budget battle. And while I’m pleased that the overspending was exposed, I wonder when the mainstream media will uncover the government money pit of overcriminalization.

“Overcriminalization” refers to the recent trend in Congress to use the criminal law to “fix” every publicized issue — a horrendous waste of government spending. Essentially, our representatives are criminalizing conduct that should be regulated by civil or administrative means. Overcriminalization has left U.S. Attorneys with a wide selection of crimes with which to charge people: There are over 4,500 federal crimes and over 300,000 regulations with criminal penalties. Not surprisingly, many of these obscure laws have led to unreasonable arrests and unjust prosecutions. These costly overcriminalization policies amount to both federal waste and government overreach.

#ad#Any one of us can be targeted and imprisoned. A homeowner can be arrested for failure to prune her shrubs, in violation of the city’s municipal code. A small-business owner can do time for lack of proper paperwork when importing orchids. Don’t own a business or a garden? You are still not safe. When the new health-care law goes into effect, everyone, with the exception of unions and other exempt parties, will face severe penalties for failure to purchase government-approved insurance. In fact, refusal to comply with the new health-care regulations is a federal violation punishable by a fine and/or imprisonment. The grander issue of wasteful government spending is still salient, but overcriminalization, while a part of that issue, also has large negative implications for the immediate livelihood of the American people.

While it is difficult to know exactly how much money the government spends to prosecute a single case, it’s instructive to look at a recent example: the infamous Barry Bonds trial. San Francisco U.S. Attorneys spent eight years and countless tax dollars investigating and prosecuting Bonds for allegedly lying under oath regarding his steroid usage. After they had dedicated so many hours and so much of the criminal-justice system’s limited resources, the jury refused to convict Bonds on any of the serious charges, finding him guilty of one charge of obstruction of justice. We need to be selective about the cases that rise to the federal criminal level, because spending our tax dollars on cases that drag on too long means that our money is being wasted.

Let me be clear: We should be tough on actual criminal acts. Let the punishment fit the crime. However, when prosecutors pursue frivolous cases that disrupt our quality of life, it’s not just that the government is wasting our tax dollars and is threatening our liberty, but it is spending less time going after real criminals: the arsonists, the murderers, and the sexual and financial predators. In actuality, our government is passing policies that are weakening our criminal-justice system and decreasing our safety.

In another example, highlighted by the Heritage Foundation, auto-racing legend Bobby Unser got lost in a blizzard, almost died, and was later convicted for operating a snow mobile in the natural wilderness. The conviction itself is quite unbelievable. If Mr. Unser did enter the wilderness, and there is no such proof, it was only due to the fact that he was disoriented in the blizzard. Nevertheless, he faced a $5,000 fine and a six-month prison sentence. It is estimated that the federal government spent approximately one million dollars to prosecute Mr. Unser.

In addition to the cost of prosecution, there are also costs associated with imprisonment. According to the Federal Bureau of Prisons, the federal inmate population was 211,176 as of March. The average cost of incarceration for one federal inmate in fiscal year 2009 was $25,251. So putting justice, liberty, and the wishes of the founding fathers aside, it’s not exactly cheap to lock up people either. We should ensure that only real criminals are behind bars. Instead of locking up gardeners for violating regulations, we should fine them and generate income.

#ad#The secondary hidden cost of overcriminalization is more difficult to quantify, but is still a drain on our economy. Former U.S. Attorney General Dick Thornburgh, in an essay for the Heritage Foundation, argues that criminal penalties have caused paranoia among all members of the business community. Businessmen are not innovating for fear of getting prosecuted, and as a result they are unable to compete in the global market. This is especially detrimental to the recovery of our ailing economy.

Because the cost of federal prosecution and imprisonment is so high, we need to ensure that this severe sanction is reserved only for actual criminals. We need to bring overcriminalization to the forefront of the American media and political table. Overcriminalization affects our daily lives and hurts all Americans. The stifling effect of criminalizing acts that should be of a regulatory nature is having a suffocating effect on American business and entrepreneurship.

A government capable of making seemingly innocuous conduct criminal is one that should be feared. The unlucky victims of the feds would certainly agree with me.

— Mahsa Saeidi-Azcué is a television personality and a former assistant district attorney from Brooklyn, New York.