Holden & Reimer: Don’t Reverse Trump’s Overcriminalization EO

Originally published at National Law Journal | February 26, 2021

by Mark V. Holden and Norman L. Reimer

In the final days of his presidency, President Donald Trump signed an executive order entitled “Protecting Americans From Overcriminalization Through Regulatory Reform.” While President Joe Biden has reversed a number of Trump’s executive orders, this is one he should keep. It is an important step in ensuring that criminal laws—specifically those buried in the countless thousands of federal criminal regulations—are clear and that prosecutors focus their tremendous power on enforcing those laws against people who actually intended to do something wrong or illegal.

Prosecuting and imprisoning a person is the greatest power the state routinely exercises over its citizens. In the United States, this power is severely overused. The United States is the most incarcerated country in the world, both in the absolute and per capita numbers of imprisoned individuals.

We also know that the enforcement of criminal laws disproportionately affects people of color. Thankfully, there is a growing movement to enact criminal legal system reform and to begin redressing these systemic inequities in the American criminal legal system. And there are many parts of the criminal legal system that need to be improved upon. One of them is ensuring that the requirements for each criminal offense are clear and that the government meets a sufficiently high bar in order to prove each such element.

At its most basic, a criminal law in the Anglo-American legal tradition requires the government to prove two things: (1) that the defendant committed a wrongful action; and (2) that the defendant acted with criminal intent, sometimes known as a mens rea—a guilty mind.

Some crimes do not require that a person acted intentionally or with a guilty mind at all. A person may be guilty of one of these crimes, called strict liability crimes, without intending to do wrong or even knowing that what they did was against the law. In almost every case, strict liability disconnects the criminal law from its moral anchor.

This executive order sets forth three policies: (1) agencies that issue regulations with criminal penalties should be clear about what conduct is subject to criminal penalties and the mens rea standard for those offenses; (2) strict liability offenses are disfavored; and (3) criminal prosecutions of regulatory offenses should focus on people who knew what they were doing was wrong or prohibited, thereby causing or risking substantial public harm.

This executive order applies only to regulatory crimes, a specific subset of criminal laws that arise when Congress delegates authority to administrative agencies to criminalize conduct. These laws are generally less well known to the public, because they are not enacted by Congress but rather by the dozens of agencies within the federal government. Furthermore, the overall volume of regulatory crimes has never been documented, though there are some estimates that number may be north of 300,000.

It is because these laws are less well known that this order is needed. All laws, particularly criminal laws, should have clear requirements regardless of whether they are statutes passed by Congress or regulations issued by an agency. It makes no sense for prosecutors to enforce these laws against people whose actions were not truly harmful and who did not know they were doing something that violated a criminal regulation.

Some critics might argue that this order would make it more difficult to prosecute white collar crimes. But, making laws more clear, having fewer laws that call for strict liability, and focusing on truly wrongful conduct are laudable. Indeed, it should be the norm in all contexts. Moreover, just as most criminal law is disproportionately enforced against certain groups, regulatory enforcement is the same way. The enforcement burden does not generally fall on Wall Street and C-suite executives, but rather on small businesses and the site managers, engineers and other mid- to low-level workers who work for them.

This executive order is a small, but meaningful, step in requiring the government to clearly lay out the conduct that is criminalized, to focus on persons whose wrongdoing was intentional and harmful, and to not punish people who did not know what they were doing was wrong or criminally prohibited. In the rush to reverse prior policies, a positive step should be preserved. Indeed, Congress should apply its principles to all of the statutory criminal law it enacts as well.

Mark V. Holden serves as chairman of the board of Americans for Prosperity. Norman L. Reimer is the executive director of the National Association of Criminal Defense Lawyers.


WLF Q&A with OIA Advisory Board Member Barry Boss

Originally published by Washington Legal Foundation | Feb. 12, 2021


Enforcement of environmental, health care, and many other regulatory statutes is left to the discretion of prosecutors to use administrative, civil, or criminal remedies.  All too often, that discretion is abused when criminal sanctions are sought when more reasonable administrative or civil remedies would be appropriate, considering the vagueness of agency regulations and lack of criminal intent.

Over the last four years, the Trump Administration sought to implement fairer enforcement practices, such as the Department of Justice’s policy that agency informal “guidance” not be used as a basis for enforcement and OMB’s Office of Information and Regulatory Affairs, issuance of a set of “best practices” that federal agencies should use for enforcing the law.  WLF authors have written about these issues and WLF has commented on those developments and how the absence of such policies have resulted in the unfair prosecution of companies and their executives, such as Todd Farha, former CEO of WellCare, and courts’ refusal to hold prosecutors’ to a higher standard of proving criminal intent (here and here).

Below, Barry Boss answers our questions on what we can expect from a Biden Adminstration’s enforcement of regulatory statutes and regulations.

WLF: One of Washington Legal Foundation’s long-standing concerns with white-collar enforcement is government’s pursuit of criminal charges for infractions that could instead be civilly enforced.  This blog has published quite a few posts over the past four years on enforcement policies issued by DOJ and other federal agencies on enforcement discretion and corporate compliance. Which among these documents did you find most welcome?

Boss: Associate Attorney General Rachel Brand issued a memo in January 2018 that provided guidance that the Department of Justice should not use its civil enforcement authority to prosecute violations of informal guidance issued by a government agency, where there was no statute or published regulation that clarified the ambiguity. In December 2018, the DOJ later applied that policy to criminal prosecutions and incorporated the policy into its Justice Manual for federal prosecutors. More recently, in the fall of 2020, the Office of Management and Budget similarly issued guidance to the executive agencies on regulatory enforcement reform and best practices, which included guidance that liability should only be imposed by agencies for violations of statutes and issued regulations. These policies go a long way toward limiting the risks of overcriminalization of reasonable business decisions in the absence of clear published regulatory guidance.

WLF: Is there a particular example of a criminal action that prosecutors would have likely declined to pursue had these policies been in effect at that time?

Boss: One example that immediately comes to mind is a case in which I have been personally involved for many years—the prosecution of WellCare executives in the Middle District of Florida. The executives prosecuted in that case had reported Medicaid expenditures to a state agency under a state statutory provision that was ambiguous, and no formal regulation or law clarified that ambiguity. Despite the absence of formal agency guidance providing clarity, the defendants were convicted because their reasonable interpretation of the state statute differed from the state agency’s informal interpretation, which was never codified into law. All of the defendants in that case, including CEO Todd Farha, recently received pardons. The official statement accompanying those pardons noted that that this case was a core example of overcriminalization. I agree with that, and think this is precisely the kind of case that the DOJ would have declined to pursue under the amended Department of Justice policy. WLF has also published several pieces on this case.

WLF: What should American businesses and entrepreneurs expect from the incoming administration on white-collar enforcement? Do you expect that they will reverse or ignore the enforcement policies you mentioned before?

Boss: Obviously, we don’t have a crystal ball on what the Biden Administration’s DOJ will look like under the leadership of Attorney General nominee Merrick Garland and his team. My personal take, however, is that there’s been a tremendous shift in perspective on criminal justice issues across the aisle over the last few years. Democrats have tended to focus on non-white-collar crimes in their reform efforts, namely drug crimes. That said, the hope is that the focus on criminal justice issues will be broad enough to cover the whole spectrum of necessary reforms to the criminal justice system, including the problem of overcriminalization, which applies not only to drug crimes, but also to white-collar crimes. The hope is that the progress made in criminal justice reform generally, including reducing overcriminalization, will be continued by the Biden Administration.  But I do think we’ll see more emphasis on white-collar prosecutions particularly involving securities, environmental crimes, and PPP and healthcare fraud.  I also expect a focus on political corruption, but these prosecutions have become more challenging after the Supreme Court’s “Bridgegate” decision (Kelly v. United States).

WLF: Do you expect that a new DOJ will increase the use of Deferred and Non-Prosecution Agreements for companies?  Do you expect an increase in prosecuting corporate executives?

Boss: Yes. One of President Biden’s first acts in office was to change the executive policy governing fines collected by the Government in settlements with private parties, including deferred-prosecution agreements, to allow the Government to direct those payments, or a portion of them, to third parties and charities. That suggests to me that President Biden sees deferred-prosecution agreements as an important tool in the Government’s belt and that the administration intends to use this tool actively, with an intent to direct proceeds to organizations working to redress the injuries caused by the conduct at issue. I think Biden specifically has an eye on using these proceeds to tackle climate change by directing fines collected from violations of environmental laws to organizations working to combat climate change and other environmental harms.

With regard to prosecutions of individuals, there is no doubt that we will see a return to something akin to the Yates Memorandum, which directed prosecutors to hold individual executives criminally responsible for a corporation’s criminal conduct.  While I understand the theory behind this policy, I think in practice it is problematic because of the incentives it creates for a company as part of its internal investigation to identify one or more sacrificial lambs to be served up to the DOJ alter in exchange for corporate leniency.

WLF: Do you see the courts becoming less deferential to agency’s interpretations of their organic law by limiting the scope of the Chevron doctrine?

Boss: President Trump filled 25 percent of the seats in the federal judiciary. The remainder are filled by judges who have been sitting for several years. As to the more established members of the bench, their approach to Chevron isn’t likely to dramatically shift in the coming years.  So the question is really how these Trump appointees are likely to apply the Chevron doctrine. There certainly are some prominent conservative jurists, such as Justice Gorsuch, who have signaled a willingness to significantly curb Chevron deference. It’s the natural extension of the overcriminalization movement. However, conservative jurists don’t seem to take a uniform approach to Chevron and there is vigorous debate within the Federalist Society and related conservative groups on the merits of Chevron deference. So, in the absence of an oracle, I think it’s hard to say at this point how the addition of these conservative jurists will influence the scope of this doctrine in the coming years.

WLF: What areas of criminal-enforcement focus have emerged over the past few years, and do you expect those areas continue to be prominent for the new leadership at DOJ and the federal agencies or are there other areas you see that might have priority?

Boss: Over the last few years, prosecuting human and drug trafficking offenses, immigration offenses, Foreign Corrupt Practice Act cases, as well as reinstating capital punishment, have been clear priorities for DOJ criminal enforcement under the Trump Administration. Another priority has been enforcing fraud and abuse of funds distributed under the Paycheck Protection Program (PPP). I think the Biden Administration will continue to prioritize prosecuting PPP fraud. But I think you’ll see a shift in the Administration’s other enforcement priorities to prosecuting domestic terrorism, political corruption, healthcare fraud, and environmental violations.  I expect DOJ to de-emphasize immigration offenses and capital cases due to President Biden’s immediate moratorium on federal executions.

WLF: As someone who’s devoted a lot of time and attention to criminal sentencing, what conclusions can you draw on how prosecutors and judges have addressed sentencing in the past several years? Are there any trends or developments that trouble you?

Boss: There have been both positive and negative developments. The positive developments come from the recognition that people were being sentenced to too much time. The First Step Act and amendments to the Sentencing Guidelines have started to bring a bit of rationality into sentencing decisions, particularly the length of incarceration. On the negative side, prosecutors today have more control than ever and have used the threat of more severe sentences to get targets to plead guilty and punish those who exercise their right to go to trial more severely. There needs to be a shift so that a defendant can contest their guilt through the constitutionally enshrined right to a trial without a severe sentence necessarily being held over their head if they lose at trial. There also needs to be a political reckoning. The way we’ve long dealt with national crises is, in their wake, to increase the penalties for existing crimes. Until we stop that cycle, we will never achieve meaningful sentencing reform.

Federal legislators and the Sentencing Commission have come to recognize that sentences for drug crimes set in the 1990s were out of proportion to the crimes themselves, and they’ve started to change the sentencing guidelines for those offenses. But what they failed to realize was that when those sentences were increased in the 1990s, there was a countervailing effort to make sure white-collar sentences were correspondingly increased in proportion to the increases in the drug sentences. We’ve now started to scale back punishments for those drug crimes, but we haven’t made the same reductions on the white-collar side. In my view, there needs to be a recognition of that and a corresponding adjustment on the white-collar side.


America’s Overcriminalization Problem

Originally posted to Bloomberg Law Insight by Brett Tolman | October 19, 2020

We have too many laws that can land someone in jail. Estimates put the number north of 300,000 federal statutes and regulations that can be criminally enforced, and the consequences of America’s addiction to criminalizing nearly everything are sobering—1 in every 4 Americans has a criminal record.

We incarcerate more than 19% of the world’s prisoners but make up only 4% of the world’s population. And despite what “real crime” TV would have you believe, less than 2% of federal criminal defendants receive a trial in which the government’s case is put to the test; the vast majority of persons feel compelled to bargain away their constitutional rights in order to receive leniency because our criminal system is so unbalanced.

It may come as a surprise to some, but the Trump administration has been consistently taking steps to address these concerns. Unlike the president’s signing of the FIRST STEP Act, other measures seem to have been overlooked. Regulatory law isn’t everyone’s cup of tea, but the administration’s work to increase fairness in regulatory enforcement is worthy of more attention.

Agency ‘Guidance Documents’ Are Not Law

A federal prosecution needs to be based upon a law passed by Congress. But hundreds of thousands of regulatory laws adopted by agencies further expand the conduct that can be prosecuted. Those regulations are required to be adopted in a manner consistent with Constitutional due process principles reflected in the Administrative Procedure Act.

However, regulators started taking shortcuts and creating “guidance documents” that don’t satisfy APA requirements, and then relying on these “guidance documents” to bind Americans to standards that were never lawfully adopted. This practice is particularly unfair in a criminal case given the potential consequences to the accused.

Thankfully, the Department of Justice has amended its Justice Manual, a document that provides guidance to prosecutors, to clarify that agency guidance documents are not a substitute for law and that “mere noncompliance” with one cannot be the basis of criminal enforcement.

Several executive orders have expanded this rule to all federal agencies. As a former U.S. Attorney, I think it makes perfect sense for the DOJ to instruct its lawyers not to seek jail sentences for those who have merely failed to comply with a non-binding document, but sadly that has not always been true.

To understand the type of case that federal prosecutors can no longer bring, consider Todd Farha, a former health-care executive convicted of “defrauding” the Medicaid program. Farha was charged with criminal offenses based on the way his company, WellCare, filed expense forms to Medicaid that reflected its interpretation of the law.

The government had a different interpretation. The prosecution relied on informal agency guidance documents to convict Farha, even though the guidance was not binding and had never been the subject of public notice and comment. Unfortunately, a court rejected Farha’s appeal, stating that the company’s obligations were governed not only by the law but also by the informal guidance.

This had very real consequences—in a case that involved no harm to any patients and no “bogus” Medicaid claims, Farha was incarcerated for three years because his company failed to comply with a document that prosecutors can no longer rely upon. And he isn’t the only one.

‘Best Practices’ for Enforcement Fairness

I am glad to see that under current DOJ policy, the type of reasoning applied in the Farha case would no longer be acceptable. I am also encouraged to see that the administration has instituted other procedural protections, as set forth recently by Paul Ray, head of the Office of Management and Budget’s Office of Information and Regulatory Affairs in a memorandum directing agencies to review their practices in light of “principles of fairness.”

Included among the “best practices”:

  • Enforcement actions should be prompt and fair;
  • Targets of investigations should be informed when an investigation is closed;
  • There shouldn’t be multiple enforcement actions based on a single set of facts;
  • Performance metrics of government lawyers should incentivize fairness;
  • Favorable evidence should be provided to the accused;
  • Penalties should be proportionate; and
  • Enforcement should be free of coercion and unfair surprise.

In response to this directive, the Department of the Interior announced that all future referrals to the DOJ for prosecution will state whether the accused knew their conduct was prohibited and have made it clear that their agency will focus its “scarce enforcement resources on those who do not merely stumble into a violation, but choose to break the law.”

This list of procedural fairness measures might seem mundane to a law student—surely these are just restatements of what is already required when the government prosecutes a person. But those who practice criminal law realize how far from these ideals many cases have strayed.

We should all be heartened to see the executive branch taking these steps. There is a dire need to see these safeguards in all criminal cases. I hope that any future administration takes heed of these fundamental principles as it goes about the business of prosecuting its own people.

Brett Tolman is a former U.S. Attorney for the District of Utah and current founder and attorney at the Tolman Group, a firm focused on public policy and government reform.


Former U.S. Attorneys Trumpet Need for Fair Notice in Federal Enforcement

Originally published by Washington Legal Foundation |October 19, 2020

A basic due-process principle for which Washington Legal Foundation has fought for over 40 years is fair notice of one’s responsibilities under the law. Americans can run afoul of hundreds of thousands of laws and regulations, as well as guidance and other informal documents. Government can enforce many laws and regulations through both civil and criminal proceeding. Business entities, just like individuals, deserve fair notice of what is against “the law.” That’s why we’ve worked to popularize the concept of business civil liberties.

One source of rules mentioned above—informal guidance—can easily escape the notice of individuals and businesses. Guidance in the form of letters, internet postings, agency amicus briefs, and advisory opinions need not adhere to the federal Administrative Procedure Act and similar laws at the state level. Regulators can adopt informal guidance without offering public notice or soliciting and reviewing public comment.

Over the past three years, the U.S. Department of Justice has instituted policies that recognize the fair-notice problem posed by enforcing informal guidance. Several senior-level memos directed prosecutors to refrain from civil and criminal enforcement of guidance documents. In 2018, the policies underlying those memos became a formal part of the “Justice Manual” the DOJ’s guide to prosecutors.

As former U.S. Attorney for Utah, Brett Tolman, notes in a Bloomberg Law United States Law Week piece, those important reforms came too late to help those convicted of failing to follow informal regulatory guidance. He spotlights the case of Todd Farha, former CEO of WellCare. Mr. Farha was charged and convicted of defrauding Florida’s Medicaid program because his company’s conduct didn’t conform to informal “guidance” found in the state Medicaid agency’s letters and calculation templates. WLF has examined numerous troublesome aspects of Mr. Farha’s prosecution, including courts’ improper deference to agency determinations (here) and courts’ refusal to hold prosecutors’ to a higher standard of criminal intent (here and here).

Another federal agency, the Office of Information and Regulatory Affairs, a part of the Office of Management and Budget, has recently released a set of “best practices” that federal agencies should embrace when enforcing the law. Mr. Tolman briefly discusses the memo in his Bloomberg piece. Another former U.S. Attorney (for Nevada), Gregory Brower, and fellow Brownstein Hyatt Farber Schreck shareholder Carrie Johnson, describe the memo and what impact it could have in an October 16 WLF Legal Opinion Letter.

After briefly reviewing the memo’s ten pronouncements, Brower and Johnson note:

While these best practices may seem obvious, anyone who has ever represented a client in the context of a federal enforcement action will welcome the Administration’s acknowledgment that basic concepts of fundamental fairness and due process can too often get lost in the zealousness with which many agencies pursue enforcement actions. However, it is not yet clear whether the various agencies will formally adopt these best practices. Some will receive the Memo as mere recommendations that are largely being followed already and that lack the force of law. The more interesting question is whether and how targets of DOJ criminal investigations leverage the Memo.

They conclude:

Whatever the ultimate impact of the Memo on actual government investigations going forward, it is refreshing to see the executive branch at least acknowledge that basic principles of fairness and due process should apply to the enforcement of federal laws and regulations.

Hear, hear.


The Intersection of Chevron and Federal Prosecutions: Courts Shouldn’t Assist Agency Overcriminalization

Originally published at the Washington Legal Foundation by John Lauro | July 16, 2020

Much has been written about the “Chevron Doctrine” and its impact on administrative law. In Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), decided over a generation ago, the U.S. Supreme Court established a principle of judicial deference to an administrative agency’s interpretation of its operating statute where the agency reached a “reasonable” construction of an otherwise ambiguous statute. Chevron presumes that modern life has become so complicated that experts within agencies need latitude to fill in the details of how a legislative scheme should operate. The ruling became engrained in modern administrative law, while relegating the courts to a secondary role in statutory construction.

Less has been written about how Chevron deference has crept into federal criminal law and how the courts often give wide latitude to agencies to define criminal liability for regulated entities and their employees.1 Indeed, it is not unusual for a court in a criminal case to “defer” to an agency’s interpretation of a statute and accord that interpretation the force of law, even where the agency has not acted through formal rulemaking.

I was counsel in such a case several years ago where healthcare executives were convicted under the federal healthcare fraud statutes for failing to abide by an agency’s “informal guidance” regarding its interpretation of a Florida healthcare statute. The case, U.S. v. Clay, 832 F.3d 1259 (11th Cir. 2016), cert. denied, 137 S. Ct. 1814 (2017), illustrates how criminal liability can be created when the courts go too far in deferring to the administrative state.

Clay involved WellCare Health Plans, Inc., a Tampa-based public holding company for certain HMO plans (“WellCare”) providing healthcare services to Florida Medicaid patients. The Agency for Healthcare Administration (“AHCA”) administered the Florida Medicaid program. In the early 2000s, the Florida legislature decided to engage HMOs in providing health care to Medicare patients under a managed-care system, rather than using an inefficient fee-for-service reimbursement scheme. Florida intended to contain healthcare costs that consumed a substantial part of the state’s budget each year and shift that economic risk to HMOs, while providing a broader array of clinicians for Medicaid recipients.2

In connection with this new regulatory scheme, the Florida legislature passed an “80/20 Statute,” Fla. Stat § 409.912(4)(b) (2006), requiring recipients of Medicaid funds to report back to the state expenditures for the provision of behavioral health care. Under the statute, if an HMO spent less than 80% of the dollars received for the provision of behavioral health care, then it had to return the difference to the state each year. For example, if an HMO received $100 for behavioral health care, but spent only $75 for the provision of that care, then $5 would be returned to the state.3

Although AHCA was responsible for administering this new statute, it chose not to engage in formal rulemaking to determine how to complete the calculation. The agency itself was deeply divided, and many bureaucrats resisted the use of HMOs in the provision of behavioral health care.  Instead of engaging in rulemaking, AHCA merely incorporated the legislative language in its contracts with HMOs and then sent out informal letters and templates suggesting how to complete the calculation. This critical decision to use “informal guidance” led to federal criminal prosecution.

WellCare had established a specialized behavioral healthcare organization (“BHO”) to coordinate all behavioral healthcare services and to hire frontline clinicians such as psychiatrists and community mental health centers. The care the BHO delivered was not in question and state auditors noted that the BHO “exceeded requirements” in providing clinical care. WellCare, in turn, counted the total amounts it paid to the BHO for its “80/20 calculations.” AHCA never adopted a rule prohibiting this methodology and WellCare’s counsel advised the company that other healthcare companies had safely taken a similar approach. Over several years of reporting, AHCA never specifically asked, and WellCare never specifically informed the agency that it was using a BHO for the calculation.

Federal prosecutors indicted the CFO of the company, along with four other executives, including WellCare’s CEO Todd Farha. The prosecution argued that WellCare had misled AHCA by including in its “80/20 calculation” payments made to an affiliated BHO, rather than including only the payments made to “frontline” providers. The prosecution did not rely on the “80/20 Statute” or the Medicaid contracts that actually supported WellCare’s method of calculation. Instead, they pointed to AHCA’s informal “guidance,” which included letters and calculation templates. Testimony from attorneys who had represented WellCare and a medical economics expert, however, confirmed that WellCare’s calculation methodology was “reasonable.”

Following a three-month trial and a deliberation spanning nearly a month, the jury rendered a mixed verdict. Although it convicted three of the executives of healthcare fraud for one of the “80/20 calculations,” the jury acquitted all the defendants of the primary conspiracy charge. The trial judge, recognizing that the case was very unique in that WellCare provided outstanding healthcare, sentenced the defendants to probation and 1-3 years—well below the draconian sentences of over 15 years recommended by the prosecutors. The defendants appealed.

The Eleventh Circuit rendered a problematic decision that upheld the convictions. The court rejected the defendants’ defense articulated in an Eleventh Circuit decision, U.S. v. Whiteside, 285 F. 3d 1345 (11th Cir. 2002), that the government had not proven beyond a reasonable doubt that their interpretation of governing legal authority was not objectively unreasonable. In Whiteside, the Eleventh Circuit held that “where the truth or falsity of the statement centers on an interpretative question of law, the government bears the burden of proving beyond a reasonable doubt that the defendant’s statement is not true under any reasonable interpretation of the law.” Whiteside, 285 F. 3d at 1351.

Not finding any inconsistencies between WellCare’s calculations and the “80/20 Statute” or WellCare’s Medicaid contracts, the Clay court held instead that the defendants had not scrupulously followed AHCA’s informal “guidance” found in its letters and calculation templates. Despite trial testimony from a former high-ranking AHCA official who had advised WellCare that, under Florida law, regulated entities did not have to follow informal guidance that had not been subjected to formal rulemaking, the Eleventh Circuit accorded these informal communications the status of governing law. The court concluded that failing to follow the “strict” interpretation of these informal communications constituted a crime. In other words, administrative agencies could make binding law through informal “guidance” that failing to follow informal agency guidance while not expressly informing the agency of that course of action, could be a criminal violation.

The defendants’ certiorari petition focused on the Eleventh Circuit’s watered-down interpretation of mens rea from a “knowing” violation  to “deliberate indifference.”4 Although the Court denied review, one wonders how the Court would address deference to agency interpretations in connection with criminal law. Justices Thomas, Gorsuch, and Kavanaugh have expressed doubt that Chevron deference can be squared with a republican form of government based upon separation of powers in the administrative and civil context.5 It is likely, therefore, that at least three justices, and perhaps more given the criminal context, would be even less tolerant of administrative agencies “making” federal criminal law.

Providing defense attorneys with some ammunition, the Justice Department issued a memorandum in January 20186 that agency “[g]uidance documents cannot create binding requirements that do not already exist by statute or regulations. . . the Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules.” Although the memorandum was directed primarily at civil enforcement, it has equal (if not more) force with regard to criminal prosecutions, which result in the deprivation of liberty. The memorandum warns federal prosecutors that if “a party fails to comply with agency guidance expanding upon statutory or regulatory requirements [that] does not mean that the party violated those underlying legal requirements; agency guidance documents cannot create any additional legal obligations.” Under current DOJ policy, then, government prosecutors would be precluded—as they did in the Clay case—from arguing that informal agency letters could constitute binding authority on the regulated public.

Deference to informal agency guidance is yet another manifestation of the scourge of overcriminalization, which includes prosecutorial misconduct;7 relaxed standards for mens rea/criminal intent;8 ambiguous jury instructions9 and the use of negligence or conscious avoidance concepts to convict individuals.10

Chevron deference emanated from the belief that administrative agencies are simply following the law and carrying out the directions of elected official in a politically neutral way.  Those days are plainly over. Defense attorneys know all too well that the entrenched bureaucracy has its own agenda—often at odds with elected legislatures. The judiciary should not imbue unaccountable bureaucrats with the authority to create law—let alone criminal law. Citizens’ lives and freedom are at stake. Just ask the WellCare executives.


  1. See Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989 (2006); Jeffrey B. Wall and Owen R. Wolfe, Why Chevron Deference for Hybrid Statutes Might Be a No-no, WLF Legal Opinion Letter, June 24, 2016.
  2. For more information on Clay, including links to the briefs in the case, see See also John Lauro, Supreme Court Cert Grant in Farha v. US Can Clarify Level of Criminal Intent Needed to Prove “Knowledge”, WLF Legal Pulse, Apr. 18, 2017; Matthew G. Kaiser, Clay v. United States: When Executives Receive Jail Time for Ordinary Business Decisions, WLF Legal Backgrounder, Mar. 13, 2015.
  3. The relevant language of the statute is as follows: “all contracts issued pursuant to this paragraph shall require 80 percent of the capitation paid to the managed care plan, including health maintenance organizations, to be expended for the provision of behavioral health care services. In the event the managed care plan expends less than 80 percent of the capitation . . . for the provision of behavioral health care services, the difference shall be returned to the agency. Fla. Stat. § 409.912(4)(b) (2006).”
  4. Lauro, supra note 2.
  5. Valerie C. Brannon and Jared P. Cole, Deference and its Discontents: Will the Supreme Court Overrule Chevron?, CONG. RESEARCH SERV. (Oct. 11, 2018).
  6. Mem. of the Associate Attorney General, Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases, at 1-2 (Jan. 25, 2018).
  7. Richard O. Faulk, Chevron Deference Conflicts with the Administrative Procedure Act, WLF Legal Pulse, Sept. 18, 2015.
  8. Lauro, supra note 2.
  9. Jeffrey Bossert Clark, Sr., Chevron Doctrine Is Opposed to Administrative Procedure Act’s Text and Legislative History, WLF Legal Opinion Letter, Aug. 26, 2016.
  10. Christine Hurt, Is ‘Conscious Avoidance’ the Next ‘Honest Services’?, The Conglomerate, July 13, 2010.


Four Ways the Executive Branch Can Advance Mens Rea Reform

Originally published at The Heritage Foundation | January 28, 2020

With the passage last year of the First Step Act, legislators and policymakers who are passionate about criminal justice reform have been looking for the next issue around which to rally. For years, scholars at The Heritage Foundation, the National Association of Criminal Defense Lawyers, and law schools around the country have hoisted mens rea reform as the rallying banner.

Mens rea—Latin for “guilty mind”—refers to the knowledge or intent that a criminal defendant must possess to be guilty of a crime. Historically, two components made up a crime: a bad action (“actus reus”) and knowledge that the act was wrong (“mens rea”). Intent mattered because the criminal law did not punish honest mistakes or harm caused by accident or negligence. It punished only behavior that was morally blameworthy.

That is no longer the case. Increasingly, the criminal law punishes accidents and criminalizes behavior without any regard to the defendant’s intent. Mens rea reformers are concerned about this trend and want to ensure that the state does not incarcerate “people who engage in conduct without any knowledge of or intent to violate the law and that they could not reasonably have anticipated would violate a criminal law.”

Just a few years ago, in 2013, a bipartisan group of members of the U.S. House of Representatives formed the Over-Criminalization Task Force and agreed on the need for mens rea reform. Ranking Member Robert “Bobby” Scott (D–VA) summed up the Democratic Members’ views:

Federal courts have consistently criticized Congress for imprecise drafting of intent requirements for criminal offenses…. It is clear that the House and Senate need to do better. We can do so by legislating more carefully and articulately regarding mens rea requirements, in order to protect against unintended and unjust conviction. We can also do [so] by ensuring adequate oversight and default rules when we fail to do so.

Robert “Bobby” Scott (D–VA)

Unfortunately, despite these and other efforts, Congress has not succeeded in passing mens rea reform legislation.

Additionally, it is not clear how much bipartisan support mens rea reform still enjoys. To some on the left, notably former President Barack Obama, mens rea reform “could undermine public safety and harm progressive goals.” That argument, however, misunderstands the role mens rea plays in our justice system. Mens rea protects everyone equally from criminal prosecution for honest mistakes or accidents. To call mens rea reform an obstacle to progressive goals reveals a willingness to sacrifice individuals’ liberty—sending them to prison and burdening them with all the consequences that a criminal conviction imposes—in pursuit of policy preferences. That is not an acceptable trade-off, but President Obama’s opinions on this issue are thankfully not ubiquitous on the left. Mens rea reform remains good policy, and policymakers should make it a high priority.

Congress, however, cannot be counted on to act on any mens rea proposals while it is bogged down in impeachment proceedings. That does not mean, however, that mens rea reform is a nonstarter. The executive branch has several options that it can consider to advance this important objective on its own.

Executive Branch Actions

The first three actions that the executive branch can take to advance mens rea reform arise out of what is known as “prosecutorial discretion.” That term refers to the charging discretion that the President and his lieutenants at the U.S. Department of Justice (DOJ) possess. The president has the responsibility to “take Care that the Laws be faithfully executed,” but prosecutors have the authority to decline to charge someone, offer him or her a plea bargain, or seek a death sentence in any particular case. Prosecutorial discretion is broad, and the Supreme Court has imposed few limits on it aside from prohibiting its exercise “to violate constitutionally prescribed guaranties of equality or liberty.”

Although prosecutorial discretion is broad, it should be employed only in individual cases or in a small set of cases. It is “designed to help achieve statutory objectives…not to frustrate statutory objectives or to effectuate a change in policy.” Fundamentally, it is not “an invitation to violate or ignore the law.”

With these guidelines in mind, the executive branch can use its prosecutorial discretion to advance the cause of mens rea reform in three ways, two of which we approve and one of which we do not approve. The fourth option derives not from prosecutorial discretion, but from the President’s authority over executive branch agencies.

1. As a matter of policy and absent extraordinary circumstances, prosecutors should decline to prosecute cases brought under statutes with inadequate mens rea elements unless there is clear evidence of bad intent.

The first option is for the Department of Justice to exercise its prosecutorial discretion to decline to prosecute crimes in any case where the Mens Rea Reform Act of 2018 would have enhanced the existing mens rea requirements. That bill would have added a default mens rea element of willfulness to any criminal offense that otherwise lacked a mens rea element.

The Attorney General could issue a policy directive to the effect that absent extraordinary circumstances, prosecutors should not file criminal charges against anyone unless there is clear evidence of “willfulness,” which would require a government prosecutor to prove that the defendant intended to break a known law or otherwise knew he was doing something wrong.

2. Require prior approval of a high-ranking DOJ official for any prosecution under a strict-liability statute.

The second option is to require approval from a U.S. Attorney or senior DOJ official before any defendant can be prosecuted for a strict-liability crime. This approach would ensure that someone in a position of authority pauses before charges are filed to consider whether a strict-liability prosecution is in the interests of individualized justice.

The Department of Justice already uses a similar approval process for other crimes. For example:

  • A prosecutor must obtain the approval of the Assistant Attorney General for the Criminal Division before initiating a case under the Racketeer Influenced and Corrupt Organizations Act. The same goes for prosecutions of the crime of fleeing to avoid prosecution.
  • Likewise, the Assistant Attorney General for the National Security Division must approve all economic espionage prosecutions.
  • Additionally, no prosecution of crimes against “Federally Protected Activities” (such as voting, serving on a federal jury, or receiving federal financial assistance) may commence until the Attorney General or Deputy Attorney General certifies that “in his or her judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice.”
  • A similar approval requirement once existed for prosecutions of trade secret theft but has since expired.

The DOJ’s Criminal Resource Manual includes dozens more of these prior-approval requirements, so adding another for strict-liability prosecutions would accord with established practices.

3. Forbid prosecutions under statutes that lack any mens rea element.

The third option—which we do not support—is simpler but more dramatic than the first two: Simply refuse to prosecute crimes under any statute that lacks an adequate mens rea element. That policy would be analogous to President Obama’s Deferred Action for Childhood Arrivals (DACA) policy because, like DACA, it amounts to a broad refusal to enforce a law.

Adopting the rationale behind that policy, the executive branch could conclude that prosecuting people for violations of statutes that lack an adequate (or any) mens rea element would be unjust and ought to be a lower priority than prosecuting individuals who violate statutes with an adequate mens rea element and engage in intentional wrongdoing or conduct they know to be dangerous.

Although this option accords with the DACA precedent, we oppose it for the same reasons we opposed that policy. It would be an improper exercise of prosecutorial discretion that violates separation-of-powers principles.

3. Order executive branch agencies to identify all agency regulations that could serve as the basis for a criminal charge and list their mens rea element(s).

The fourth option comes not from the executive’s prosecutorial discretion but from the President’s authority over the executive branch agencies that he oversees. Pursuant to that authority, the President can issue an executive order requiring all executive branch agencies that have criminally enforced regulations to identify those regulations and describe their mens rea elements. The Department of Justice should then review them to determine whether those regulations adequately protect potential defendants from unjust prosecutions.

The task would be daunting—experts estimate that there are 300,000 or more regulatory crimes—but not without precedent.

  • North Carolina’s legislature recently ordered the state’s agencies to compile and report on all of their criminal regulations. The legislature will then review the regulations and determine whether any of them should have their criminal penalties removed.
  • In 2014, Minnesota’s legislature—at the request of its Democratic Governor, Mark Dayton, reviewed and repealed 1,175 obsolete regulations and crimes.
  • The Texas legislature maintains a Sunset Advisory Commission that assesses “the continuing need for a state agency or program to exist.” As part of that ongoing assessment, the legislature reviews and, if appropriate, eliminates certain regulations.

In addition, easily adaptable model language for this executive order already exists. The Mens Rea Reform Act of 2018, which was introduced by then-Senator Orrin Hatch (R–UT), included language that would have required federal agencies to specify a mens rea standard for all regulations that carry criminal penalties and would have automatically invalidated any regulations that lacked a mens rea standard after six years, with some exceptions.

Regardless of whether it is Congress or the President that decides to take action on mens rea reform, rounding up and taking inventory of the vast herd of regulatory crimes would be an important first step.


Mens rea reform remains a high priority for many criminal-justice reformers who are concerned about the expansion and misuse of the criminal laws. Unfortunately, despite bipartisan support, Congress has not acted and, at least for the foreseeable future, is not likely to act. Thankfully, however, the cause is not dead in the water; the executive branch has various options that it can and should consider to advance mens rea reform efforts.


LEVICK’s Criminalizing the Boardroom

Overcriminalization is an unfortunate fact of life for business people right now. Until this state of affairs changes, people who work in business—particularly management and executives—need to be aware of how to protect themselves if the wrong prosecutor or government agent looks their way.

LEVICK put together a great guidebook entitled “Criminalizing the Boardroom” that business people should read to learn about the risks and best practices to protect themselves.  You can download here.

Criminalizing the Boardroom: A Communications Guidebook for Prosecutorial Targets from LEVICK . Available at


Appeals Court Ruling Slaps Down Prosecutorial Overreach

Originally published at The Daily Signal by Amir Babak Banyan and Bryan Puckett | August 20, 2019


  • There are hundreds of thousands of federal crimes, creating a minefield of criminal liability that Americans unknowingly walk through every day.
  • Prosecutors already have tremendous power, and the fewer tethers it has, the more unjust its use becomes.  
  • The 6th Circuit deserves praise for overturning the convictions of Amir Babak Banyan and Bryan Puckett in Tennessee.Copied

In an opinion issued on Aug. 5, the 6th U.S. Circuit Court of Appeals struck a small but valuable blow against prosecutorial overreach and the problem of overcriminalization.

By now, overcriminalization—the overuse and abuse of criminal laws to address every societal concern and punish every mistake—is a familiar problem. 

There are hundreds of thousands of federal crimes, creating a minefield of criminal liability that Americans unknowingly walk through every day.

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The federal criminal code and the hundreds of thousands of criminal statutes contained in federal regulations criminalize things such as making an annoying noise in a national park, allowing a horse to exceed a “slow walk” when people nearby are on foot, and using a surfboard on a beach designated for swimming.

No less serious than the problem of criminalizing all sorts of innocent behavior is the problem posed by overzealous prosecutors who stretch the law to obtain as many criminal convictions as possible.

As The Heritage Foundation’s Paul Larkin writes, overzealous prosecutors “might not acknowledge or even recognize instances of overcriminalization, and even if they did, they might not highlight them, because doing so would embarrass the attorney general and individual U.S. attorneys who had the authority to prevent any such prosecutions.”

In the 6th Circuit case, prosecutors charged the defendants with bank fraud, even though they didn’t commit bank fraud. The defendants did commit mortgage fraud, but the government didn’t prosecute them for that. 

In fact, for reasons unknown, the prosecutors ignored that crime for five years until the statute of limitations expired.  

Then, realizing that their delay cost them a mortgage fraud conviction, the prosecutors searched the criminal code for some law that might let them prosecute the defendants anyway. They settled on bank fraud, even though the defendants’ crime didn’t fit the bill. 

But the court refused to expand the law because the bank fraud statute “is as straightforward as they come” and plainly did not cover mortgage fraud. It ordered that the defendants be acquitted.

That was the right outcome. 

You might counter, “The defendants were guilty of something. Surely they should go to jail, regardless of the prosecutors’ mistake.” But that flips due process on its head, allowing the government to lock people up whenever—and for whatever—it wants.

Prosecutors already have tremendous power, and the fewer tethers it has, the more unjust its use becomes.  

Consider the case of Eddie Leroy Anderson and his son. 

Prosecutors charged them with federal felonies for looking for arrowheads on federal land. Although they found no arrowheads, prosecutors argued that the mere act of looking for them was an attempt to violate an obscure law that the father and son didn’t know existed.  

Facing felony convictions and prison terms, Anderson and his son pleaded guilty to lesser charges.

In another case, prosecutors charged a fisherman with destruction of “tangible objects” in violation of a law designed to prevent financial companies from destroying records of fraudulent activities. 

The Supreme Court reversed the fisherman’s conviction and held that although fish are, strictly speaking, tangible objects, prosecuting the fisherman for throwing fish back into the sea was an impermissible expansion of a law designed to target financial crimes.

In each of these cases, prosecutors zealously sought a conviction, but never stopped to ask if they were doing justice.

The 6th Circuit deserves praise for overturning the convictions of Amir Babak Banyan and Bryan Puckett in Tennessee.

In so doing, the court reminded the prosecutors that liberty is best protected by interpreting criminal statutes narrowly and putting the burden squarely on the government to apply the right laws to the right crimes.

Prosecutors would do well to remember U.S. Supreme Court Justice George Sutherland’s admonition in a 1935 ruling that although a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.”

This piece originally appeared in The Daily Signal


Criminal Justice Reform is a Bi-partisan Issue

Originally published at National Review by Michael Tanner | May 29, 2019

Both Trump and the Democrats have brought attention to the issue.

While we should expect the upcoming presidential campaign to focus on traditional issues of the economy, taxes, foreign policy, trade, and immigration — as well as the elephant in the room that is Donald Trump — criminal-justice reform has become a surprisingly hot topic on the campaign trail.

At one point, every presidential candidate pretended he was running for sheriff. “Tough on crime” was considered the ultimate badge of honor — in both parties. Bill Clinton even rushed home during his campaign to execute a mentally disabled murderer. Times have clearly changed.  T

This is in part due to the growing evidence of racial and class inequities within the criminal-justice system. Studies also show that failures within our criminal-justice system contribute to poverty and dependence. A recent YouGov poll conducted on behalf of the Cato Institute found that 22 percent of the unemployed and 23 percent of people on welfare had been unable to find a job because of a criminal record. Scholars at Villanova have concluded that mass incarceration increases the U.S. poverty rate by as much as 20 percent. It has also become clear that overcriminalization and mass incarceration have not necessarily made us safer. Support for criminal-justice reform now cuts across party lines.

But there is also a large degree of politics behind the sudden importance of criminal-justice reform on the campaign trail. Most important, Democratic frontrunner Joe Biden is perceived as being vulnerable on the issue. Biden supported and partially wrote the 1994 Violent Crime Control and Law Enforcement Act, which led to an increase in incarceration — especially among African Americans. He also supported and sponsored several pieces of legislation that enhanced sentencing for drug-related crimes, once again contributing to the mass incarceration of minorities.

Even President Trump has taken the opportunity to tweak Biden on the issue, tweeting, “Anyone associated with the 1994 Crime Bill will not have a chance of being elected. In particular, African Americans will not be able [sic] to vote for you. I, on the other hand, was responsible for Criminal Justice Reform, which had tremendous support, and helped fix the bad 1994 Bill!” And in a second tweet, Trump noted that “Super Predator was the term associated with the 1994 Crime Bill that Sleepy Joe Biden was so heavily involved in passing. That was a dark period in American History, but has Sleepy Joe apologized? No!”

Trump is not exactly the best messenger on this front, given his at least implied support for police abuses. But he is correct that he signed the FIRST STEP Act, the first important federal prison and criminal-justice reform in many years. As a policy, it was modest stuff, but it symbolically highlighted the changing politics of the issue.

Biden is not the only one with vulnerabilities on criminal justice. During her time as a prosecutor, Kamala Harris vigorously enforced California’s three-strikes law, actively pursued drug users and sex workers, and even prosecuted the parents of truant children. She was also an outspoken supporter of asset forfeiture and the use of solitary confinement in prisons. She backed capital punishment and resisted calls to investigate some police shootings.

So far, she has responded by apologizing for her past positions, now saying, “Too many black and brown Americans are locked up. From mass incarceration to cash bail to policing, our criminal-justice system needs drastic repair.” She has also sponsored the Equal Defense Act, which increases funding for public defenders. Still, criminal-justice activists have remained critical, complaining that she has ducked specific reform proposals.

Other Democrats also have hurdles to overcome. Bernie Sanders, for instance, voted for the 1994 crime bill, although he had a much lower profile than Biden. And, like Harris, Senator Amy Klobuchar also has a background as a prosecutor. Her low poll standing has kept it from becoming an issue yet, but she may eventually face some tough questions about her actions in that office. Even South Bend mayor Pete Buttigieg has faced scrutiny over his handling of police-abuse complaints during his tenure as mayor.

On the other hand, candidates such as Cory Booker, Elizabeth Warren, and Beto O’Rourke are better positioned on the issue. Booker, in particular, has championed justice reform. He has introduced the Next Step Act, which would expand upon the FIRST STEP Act. Booker is also calling for cutting minimum drug sentencing in half, legalizing marijuana, removing barriers to entry in the job market for those with felony records, and reinstating the right of felons to vote in federal elections.

Beto pushed for criminal-justice reform during his Senate campaign in Texas and has reiterated his support during his presidential campaign. During his Texas campaign, he stated that he would like Texas to lead the way on criminal-justice reform. He supports ending cash bail at the state level, making for-profit prisons illegal, ending mandatory-minimum sentencing for nonviolent drug offenses, and legalizing marijuana.1

Warren has been far less specific, mostly limiting herself to rhetoric about the “racist” criminal-justice system. For a candidate whose claim to fame is “I have a plan for that,” she is remarkably vague on this issue. Still, she carries far less past baggage than others, leaving her an opening.

With more than two dozen candidates in the Democratic primary and a general election that is looking extremely close, even secondary issues could play an outsized role in deciding the outcome. Keep your eyes on criminal-justice reform.

MICHAEL TANNER is a senior fellow at the Cato Institute and the author of THE INCLUSIVE ECONOMY: HOW TO BRING WEALTH TO AMERICA’S POOR.  You can follow him on his blog, TANNERONPOLICY.COM@mtannercato


Courtesy for Some, Misdemeanors for Others

Originally published at Cato Institute by John Pfaff | April 16, 2019

Case: Whren v. US

I am pleased to have this chance to share some thoughts on Sarah Seo’s new book, Policing the Open Road, about the relationship between our car-centered culture and policing. The fascinating historical story she tells—how the introduction of the mass-produced car, which seems so unrelated to criminal justice, led to fundamental changes in policing—alone makes her introductory essay worth reading. Like: why are the police trained to be polite? Because when they started policing roads, they suddenly came into contract with middle- and upper-class citizens, and their prior gruffness was no longer acceptable.

Perhaps more important, Seo’s book is part of a critical refocusing of our discussion of criminal justice reform, away from mass incarceration (where I spend most of my time) and towards mass punishment. Most reform discussions focus on prisons, and prison populations are the central metric by which we compare ourselves to other countries and our own past. But prisons, and the generally serious offenses that send people there, are just the tip of the punishment iceberg. While there are about 1.4 million people in prison, we send over 10 million to jails every year, and we make about 10 or 11 million arrests—most of which are for offenses that will never send someone to prison (only about 500,000 are for serious violence and 1.3 million for serious property crimes).

In other words, while our reform efforts tend to focus on felonies and prisons—on incarceration—almost everyone’s contact with criminal justice is through the far vaster, far more invisible, and far more disorganized world of Misdemeanorland (to steal Issa Kohler-Hausmann’s fantastic neologism). And as people like Kohler-Hausmann and Alexandra Natapoff (in her Punishment Without Crime) have recently shown, the overall impact of Misdemeanorland surely dwarfs that of the felony system, even if it receives only a fraction of the attention. Seo’s examination of policing automobiles is an important contribution to this, since she is looking at the single most common form of police-citizen interaction (at least for those who do not live in a small subset of heavily policed urban neighborhoods), and one of the few that easily and frequently crosses the lines of race and class.

In fact, it was this universality of traffic stops that jumped out at me, leading first to one troubling observation and then to one troubling question.

To start, Seo’s account complicates some aspects of the narrative we rely on to explain why our system is so punitive, especially at the misdemeanor level. Oftentimes discussions about criminal justice reform turn to the issue of “overcriminalization,” the idea that we criminalize too much conduct that should not be a crime in the first place. By and large, this is somewhat of a red herring in the context of felonies and prison populations; even if many of the people in prison need not be there (or be there for as long), almost all have often been convicted of conduct we all agree should remain criminalized (like assault or theft). But it is not a minor point when we get to Misdemeanorland.

Misdemeanorland is defined by overcriminalization. We have criminalized as misdemeanors all sorts of conduct that is unappealing and problematic but almost certainly not deserving of any sort of criminal punishment, like jaywalking, spitting on the street—or even non-reckless speeding. And even when the conduct these low-level laws target may seem criminally problematic, the laws are often drafted so broadly that they cover all sorts of behavior they surely shouldn’t.

Most discussions of this overcriminalization of Misdemeanorland frame it as the logical end-result of America’s deep-seated racism and classism. We quickly turn to Misdemeanorland to handle things like speeding or playing loud music because of an almost instinctive desire to punish the poor, people of color, and especially poor people of color, a response that crowds out less punitive ways to address these issues.

That instinct is no doubt significant, but Seo’s account introduces an important wrinkle to this take.

When states first stated regulating driving, the people driving were far more likely to be middle- or upper-class and white—they very people we think (correctly) that the system goes out of its way to treat better. Yet even here, our instinct was to regulate driving primarily through the criminal code and police enforcement. As Seo points out, the rise of the car led to wealthier Americans suddenly having encounters with the (rapidly expanding) police, not with local and state governments coming up with new non-police ways to regulate driving. And the statutory responses were often punitive as well. In Georgia, for example, every traffic violation is a misdemeanor carrying not only the risk of a fine but of jail time.

Now, to be absolutely clear, if wealthier white Americans and their families and friends were repeatedly subjected to the indignities of our massive misdemeanor system—arrested and cuffed in public, shipped off to Rikers for a few days, and then saddled with fines and fees and restrictions on liberty for nothing more than, say, crossing in the middle of the street or driving without a seatbelt on—we would surely see a massive push for changes, and Misdemeanorland would not be nearly as invisible to most people as it is.

But Seo’s historical account points out just how deeply held our punitive instinct is. It is an instinct that has waxed and waned, to be sure—our incarceration rates have been much lower in the past, even when national politics were surely more punitive—but Seo’s story of cars and policing and driving misdemeanors is an important reminder of just how broad that instinct can be.

Seo’s discussion of the normalcy of traffic stops also brought up for me an intriguing question about policing reform. While there is a broad bipartisan consensus for prison reform, such is not the case for policing, and I wonder if traffic policing, and the civility-in-policing norms it created, is one reason why. Despite new data about the remarkable number of Americans who know someone who has had at least some contact with prisons or jails, those two institutions remain generally alien to most people. When we hear that conditions are awful or abusive, many if not most voters do not filter that information through any personal experience.

Such is not the case, however, for policing. Far more people have had interactions with the police than with prison or jail, and most of those interactions have been via traffic stops—stops where the police, as Seo points out, have been trained to be more polite. So when people otherwise uninvolved with the criminal justice system hear about police brutality, aggressiveness, and harassment, they have personal experiences to turn to—experiences that do not line up with those accounts. “Well, all my interactions with the police have been polite and respectful” might be anecdotal reasoning, but it is often compelling anecdotal reasoning.

Obviously the solution isn’t to encourage police to be less civil when stopping suburban motorists. But by highlighting the unique ubiquity of police vehicle stops, Seo may have also shed light on why efforts to reform policing seem to face more of an upward battle than those to fix other aspects of our flawed criminal justice system.


Overzealous Prosecutors And The Risk Of Voluntary Disclosure

Originally published at Forbes by Richard Levick | March 8, 2019

There is a great irony to writing a column about overzealous prosecutors in the shadow of the first Paul Manafort sentence where it appears by any measure that he secured a remarkably lenient sentence. Yet my recent series in on the disquieting trend toward criminalizing “normal” American enterprise stirred more than a few pointed comments. The most common response? “Have I got a story for you!”

Genuine criminal misconduct is one thing. If a company or an executive knowingly, maliciously, and repeatedly violates the law, they deserve society’s censure, plus jail time if warranted.

But what if their “misdeed” is not the product of willful or malevolent behavior? What if their action would have passed legal muster until very recently? Even worse, what if their prosecution was triggered by an overly ambitious prosecutor looking for a headline and a healthy settlement?Today In: Leadership

It’s this apprehension that elicited the most comments. The National Association of Criminal Defense Lawyers (NACDL), as well as prominent attorneys, shared a litany of alarming stories. Indeed, NACDL’s analysis reveals that some 95% of all criminal convictions are now obtained through plea bargaining instead of jury trials. Prosecutors know that few companies can afford the expense and the jarring publicity generated by a high-profile trial.

Washington, D.C. attorney Paul D. Kamenar, a public policy lawyer who litigates, lectures, and lobbies on over-criminalization issues, emailed links to the Cato Institutethe Heritage Foundation, the Federalist Society, NACDL, and the U.S. Chamber of Commerce Institute for Legal Reform websites, all focusing on over-criminalization and prosecutorial misconduct.

Kamenar specifically cited the nightmare experiences of two corporate CEOs in the medical field. Todd Farha, a young Harvard MBA businessman and former CEO of WellCare Health Plans, was convicted and sentenced to prison in 2014 for Medicaid fraud, but not because the company provided faulty services. Instead, he was found guilty for not calculating what the government argued was the “proper” amount of Medicaid funds to rebate, which hinged on a vague and confusing regulatory accounting formula. Third-party experts agreed that the interpretation of the refund formula by the CEO, the CFO, and the General Counsel was reasonable. Moreover, there were ample administrative and civil remedies to correct any disputed overpayments, particularly where requisite criminal intent was lacking. The NACDL has a special link with nearly three dozen articles, op-eds, podcasts, and legal briefs devoted to this unfair prosecution. They’re worth a careful read.

Howard Root, the former CEO of Minnesota-based Vascular Solutions, Inc., and author of Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit-List, spent a half-decade and $25 million (!) in legal fees combating what proved to be a groundless Department of Justice (DoJ) claim that his company was fraudulently marketing a vascular health device. An embittered ex-employee of Vascular had leveled the reckless charge – and DoJ bought into it, ignoring the fact that the device in question had never harmed a patient and represented less than one percent of the company’s overall sales.

After being put through a legal labyrinth, he and Vascular were eventually acquitted of all wrongdoing. Not long ago he sold Vascular for a billion dollars, which must have been a gratifying moment.

“I wish my story was a lightning strike in the perfect storm – a few unscrupulous prosecutors conned by desperate whistleblowers,” Root says today. “But prosecutions like mine are exploding across the United States. When prosecutors can use false criminal charges to destroy everyone except the few wealthy and unbroken defendants like me, then virtually everyone is in danger – even if you’ve done nothing wrong.”

Have we entered a period where only the exceptionally wealthy can defend themselves against the state, regardless of the charge? And, worse still, are we reaching a tipping point where the very fear of long-arm prosecution will deflate capitalism’s beating heart? I grew up professionally in the Ralph Nader consumer network and always trained to defend the citizen, not the corporate executive. If you have someone like me scratching their head, we may be well past the tipping point.

Among the businesspeople who find themselves caught in Root’s “perfect storm” of legal jeopardy are corporate executives like Farha who have adhered to the advice of in-house counsel. What was previously deemed “routine” or “innocuous” is, in today’s litigious climate, seen by overzealous prosecutors as unlawful – or grounds for a high-profile settlement. In other words, following the advice of counsel is no guarantee of liberty, even when good faith is never in question.

“With over 4,450 crimes scattered throughout the federal criminal code, and untold numbers of federal regulatory criminal provisions, our nation’s addiction to criminalization backlogs our judiciary, overflows our prisons, and forces innocent individuals to plead guilty not because they actually are, but because exercising their constitutional right to a trial is prohibitively expensive and too much of a risk,” maintains NACDL. “This inefficient and ineffective system is, of course, a tremendous taxpayer burden.”

The burden extends beyond taxpayers. As Scott D. Marrs, Akerman’s Regional Managing Partner – Texas and our collaborator on the overcriminalization series, puts it: “Not many clients have the unlimited resources and thickness of skin to get into a nasty trial climate. Often the percentage move is to agree to a settlement – even if the client hasn’t done anything unlawful. That’s not a healthy situation for anyone.”

It also may not be healthy that certain corporations have taken to hiring former prosecutors to help them avert unfair prosecutions.

These former prosecutors appear to be preaching voluntary disclosure – urging companies to be as upfront and transparent as possible. The fewer corporate activities seen as furtive, the greater the likelihood that prosecutors will look elsewhere. Transparency always carries a degree of risk; but the risk associated with opacity is, in this instance, far greater.

“As far as deciding which firms to prosecute,” observes Professor Eugene Soltes, an Associate Professor of Business Administration at Harvard Business School and the author of Why They Do It: Inside the Mind of the White-Collar Criminal, “I think the biggest shift has been around voluntary disclosure – especially in the context of the Foreign Corrupt Practices Act (FCPA). Firms that bring such issues to prosecutors can qualify to not be charged if they are fully transparent. This is an important shift in policy and changes the calculus about how firms approach some of these issues.”

Achieving a level of voluntary disclosure that might dissuade a prosecutor from launching an investigation is easier said than done. What other steps can companies take to try and inoculate themselves?

First and foremost, companies shouldn’t go it alone. Retain expert legal and communications counsel, and engage all key senior leaders, beginning with the general counsel’s office, public affairs, communications, and marketing.

Second, the CEO and the GC need to dictate from day one that the fewer non-transparent activities, the better. Sure, there are proprietary initiatives and secret-sauce recipes that can’t be exposed to sunlight, but they should be few and far between.

Third, don’t wait until something unsavory happens: move now, during peacetime. Once the charge has gone public, it’s too late.

Fourth, and this requires some collective action, join with associationslaw professors, former prosecutors, and think tanks such as those mentioned above, as well as others known for their free enterprise and judicial fairness views, and articulate the need for balance. Produce videos to help dominate the search engines so that the challenge of overzealous prosecution becomes a national cause more than the sound and fury of a single victim. The overregulation argument is an old saw that has lost a lot of its firepower because it was used for decades as an argument against all regulation. Show the negative impact on jurisprudence, business, the public trust or public policy, not just the potential negative impact on a single company or executive. The larger the risk to other audiences, the more likely the issue is to gain traction and sympathy.

Finally, collect and publicize the most egregious examples; rather than allowing selfish prosecutors to dominate headlines, try to engage the public square with capitalism’s reliance on fairness, not intimidation, as the lodestar. Applaud proper prosecutions and argue for some regulation while changing the national dialogue to address the discretion and intimidation that have become prosecutorial weapons rather than scales of justice. This strategy was adopted a few years ago by the FCPA defense bar, which substantially changed the national dialogue.

Amid the FCPA debate, DoJ and Securities and Exchange Commission (SEC) lawyers increasingly saw a “don’t over-prosecute” message every time they searched the Internet. If you want to impact collective behavior, there is no more powerful way than to influence search results; videos do that faster than anything. But you need to coordinate this with other companies, former prosecutors, thought leaders, business executives, and law professors. No one company can do this alone.

Are unwarranted prosecutions the scourge that Kamenar, Farha, Root, Marrs, and others fear? Trends certainly appear to be heading in that direction. Before a nasty prosecution heads your way, you ought to take some constructive steps.


Why a Bipartisan Bill to Federalize Animal Abuse Crimes Is Well-Intentioned but Wrongheaded

Originally published at The Daily Signal by Jonathan Zalewski | 2/5/19

A pair of congressman from Florida announced Jan. 23 they would be introducing a bill in Congress that would make it a federal crime to abuse and torture animals.

Reps. Ted Deutch, a Democrat, and Vern Buchanan, a Republican, said those convicted of the crime would face a maximum of seven years in federal prison.

“This is commonsense, bipartisan legislation to bring some compassion to our animal laws,” Deutch said.

“For many Americans, animal welfare is an important policy issue, and the idea of animal abuse is abhorrent,” he explained.

Yes, it is important, and yes, it is abhorrent—but common sense? Not so much.

Protecting animals is a laudable aim, but this bill would take federal law too far to accomplish that end.

The Preventing Animal Cruelty and Torture (PACT) Act would make it a federal crime to crush, burn, drown, suffocate, or impale an animal or otherwise subject an animal to serious bodily harm if those acts take place on federal property or affect interstate commerce.

By criminalizing animal abuse that “affects interstate commerce,” the bill would unnecessarily interject the federal government into an issue that belongs primarily in the realm of state and local law enforcement.

In the process, the bill would spread already strained federal resources even thinner by tasking federal authorities with policing local neighborhoods and communities for animal abusers.

The fact is, animal cruelty is already illegal in every state, and local police ably enforce those laws.  

While the federal government has a compelling interest in policing animal abuse on federal property, the federal government should not be in the business of “bear[ing] down on the distinctively local concern of crimes against Fido, too,” as scholars at The Heritage Foundation argued two years ago while discussing a similar bill.

The Pet and Women Safety Act of 2017, if it had passed, would have made it a federal crime to harass or intimidate a pet in a manner that causes “substantial emotional distress” to the owner.

As the Heritage scholars stated, “While no one condones violence against any [animal], common sense and principles of federalism in law enforcement suggest that the clear and compelling federal interests to pursue gangs, cartels, and the like do not as clearly apply to hunting down animal abusers.”

Crimes like arson, carjacking, and animal abuse are serious offenses, but they are generally local in nature. Needlessly involving the federal government only continues the alarming trend toward the overfederalization of crime—a symptom of the overcriminalization phenomenon.

For many years, Heritage scholars have cautioned that overfederalization wastes government resources because it tasks federal law enforcement authorities with policing local crime, distracting federal officials who ought to be focusing their efforts on truly national concerns (see herehere, and here).

Former U.S. Attorney General Edwin Meese III, the leading Heritage scholar on the issue of overfederalization, explained more than 20 years ago that the federalization of crime “invites selective prosecution, and disparate enforcement and punishment. Federal officials determine, usually on the basis of political factors, whether they will get involved in a case.”

Rather than trying to solve every problem in local communities, the federal government makes best use of its resources by protecting Americans from far greater threats posed by human traffickers, violent drug cartels, cybercriminals, and terrorist organizations, to name a few.

Congress’ efforts to intervene in matters of state and local concern also greatly expand the federal government’s police power; that is, the authority of the government to regulate the safety and well-being of citizens, which is a power reserved to the states by the federal Constitution.

As that happens, then-Supreme Court Chief Justice William Rehnquist observed in 2000, the distinction between national and local government is obliterated in favor of a “completely centralized government” incompatible with the Constitution’s “dual system of government.”

The PACT Act’s broad attempt to criminalize animal abuse on land not owned by the federal government would only further obliterate that distinction, and it would do so for no clear reason.

Animal abuse is already a crime in every state, and 46 states take the issue so seriously that they have made it a first-time felony offense.

What’s more, those laws are being actively enforced.

Just last week, three people were arrested by Virginia law enforcement officers and charged with several counts of animal abuse and neglect under the state’s criminal laws.

In Pennsylvania, a former kennel owner, with a previous animal abuse conviction, last week pleaded guilty to more criminal charges of animal abuse in violation of that state’s law.

To be sure, one could envision instances of animal abuse that might warrant federal intervention on land not owned by the federal government, such as illegal dogfighting rings that involve organized crime. But here again, federal law (see here and here) already prohibits these activities.

For instance, no new federal laws were needed to take down former NFL quarterback Michael Vick, who pleaded guilty in 2007 to violating federal law for operating a dogfighting ring on his privately owned property in Virginia.

Vick spent 23 months in federal prison for his crimes.

Federal law also prohibits the recording and distribution of animal abuse videos under the Animal Crush Video Prohibition Act in 2010—a law that was passed to deter the promotion of animal abuse over the internet.

Congress’ overfederalization of crime is a troubling trend that accelerated decades ago, leaving our federal government with resources spread too thin and the states with less power.

As I have written elsewhere, it’s easy to understand why the trend has continued apace: “Politicians like creating new criminal law[s] because it is an especially easy way for [them] to drum up political support, [as] it gives the public a sense that ‘something is being done’ about crime.”

The PACT Act is another bill that gives Americans that sense that Congress is “doing something” about crime. Unfortunately, once again, it is doing all the wrong things.


The Criminalization of Everything

Originally published at Charles Koch Institute by Jeremiah Mosteller

The average American unknowingly commits three or more federal crimes a day. Are there just too many laws?

Examples of Overcriminalization

A river guide was charged with “obstructing government operations” when he dove into the water to save a child instead of waiting for a search and rescue team to arrive. When a Christian outreach group offered food to homeless people in a Fort Lauderdale park, its members were arrested because a local regulation disallowed such food sharing. Thinking of advertising your business hours in Eastern Standard Time? You could be arrested and charged in at least one place in the United States.

Though they may seem ridiculous, these so-called crimes offer a window into a serious problem called overcriminalization, a side effect of making criminal law a one-size-fits-all solution for society’s problems. Our system of laws has become so big and confusing, it can turn ordinary citizens into accidental criminals.

Definition of Overcriminalization

Overcriminalization is the overuse or misuse of criminal law to address societal problems that could be remedied more effectively though the civil legal system or other institutions. It’s an issue that has mushroomed over time, as crime after crime is added to our criminal codes.

History of Overcriminalization in America

When it was enacted in 1790, the federal criminal code included just 30 crimes, but by the 1980s, the number had exploded to more than 3,000. The number of crimes in federal law and regulations today is unknown. The Department of Justice has failed many times to catalog this list, but studies estimate that there are 5,000 statutes and 300,000 regulations that carry federal criminal penalties. In the session ending in 2019, Congress introduced 154 bills that would have added new criminal penalties to the federal code. While this is a reduction from recent years, new federal crimes continue to be a significant contributor to overcriminalization.

The problem is by no means restricted to the federal government. Thousands of statutes, regulations, and local ordinances carry criminal penalties in each state. Arizona has over 4,000 statutory offenses that can result in a criminal conviction. North Carolina has added five sections to its criminal code each year since World War II, and its legislature has added 318 new crimes since 2009 alone. These numbers are compounded by the fact that our state legal systems are a patchwork of laws, where even crimes with the same name require a variety of different statutory elements across state borders.

The Accidental Criminal

The existence of so many criminal acts would reasonably lead to the assumption that there must be a defense for an individual who innocently breaks an obscure law not knowing that the conduct is illegal. In law school, every future attorney is taught that the criminal law requires an element of mens rea or criminal intent to find someone guilty. Throughout history, criminal statutes have required some form of criminal intent such as negligence, recklessness, knowledge, intent, or willfulness.

Many recent criminal statutes implemented at both the federal and state level lack mens rea standards or have unclear standards that frequently apply to conduct a reasonable person would not assume is wrong or illegal. In 2015, the Supreme Court highlighted this problem, stating that the fact a “statute does not specify any required mental state” does not dispense with the fact that criminal intent is “necessary to separate wrongful conduct from otherwise innocent conduct.” Unfortunately, the Court failed to provide a default mens rea standard so these statutes remain ambiguous.

The Consequences of Overcriminalization

The overwhelming number of criminal laws and lack of criminal intent requirements in many statutes presents a constitutional hazard given the requirement that citizens have “fair warning” of conduct that the government “commands or forbids.” Even the most intelligent and skilled attorney cannot know all that is contained in the four million pages that make up the federal criminal code. A system of law that cannot be known or understood has the potential to make accidental criminals out of ordinary citizens and represents a foundational threat to the legitimacy of our criminal laws.

The story of fisherman John Yates presents a second concern commonly raised about overcriminalization: arbitrary or abusive prosecution. Prosecutors brought charges against Yates and secured a felony conviction for a violation of the “anti-document-shredding” provision of the Sarbanes-Oxley Act. What did Mr. Yates do to deserve time in a federal prison? He threw three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal regulations, in effect destroying evidence. While the Supreme Court overturned his conviction eight years later, not everyone facing a similar situation has the chance to have the Supreme Court hear their case.

Bearing the stress and the cost of defending yourself in a case like Yates’s is just one danger of laws gone wild. Here’s another: Overcriminalization provides prosecutors with high levels of discretion to choose when to bring criminal charges for conduct that should not be considered criminal in the first place. And it provides unethical prosecutors with the opportunity to overcharge defendants for wrongful conduct as leverage to force a guilty plea.

The impact of overcriminalization extends far beyond a conviction. A criminal record doesn’t just invite societal stigma; the Council of State Governments Justice Center reports that such a record can erect an astonishing 44,000 legal barriers to a successful life. Combined, the social and legal consequences of being convicted of a crime can severely limit access to housing, employment, educational grants, and more things necessary to be a contributing member of a local community. This continuing punishment denies people a true second chance and has a negative impact on public safety and the economy. By imposing criminal penalties for such a broad range of conduct, we impose barriers to well-being for conduct that could more effectively be handled outside the criminal justice system.

Overcriminalization Reform

Our criminal law is not intended to punish every type of conduct that isn’t beneficial to society. Steps should be taken at both the federal and state level to identify and reduce the number of duplicative, unnecessary, and unjust statutes carrying criminal penalties. While many statues were adopted by well-intentioned lawmakers seeking to solve perceived or actual problems, they were often drafted in a sweeping manner resulting in the criminalization of victimless acts that cause no harm to local communities or public safety.

In 2014, Minnesota did what was previously thought to be impossible. The state removed 1,175 obsolete, unnecessary, or unreasonable laws from the state’s various legal codes. These included a prohibition against carrying fruit in an improperly sized container or driving a car in neutral as well as more serious items such as removing a duplicate of the state’s criminal negligence statute that was never actually utilized by prosecutors.

Other states are undertaking similar efforts to remove unnecessary or duplicative statutes and regulations. In recent years, Ohio and North Carolina have both begun to reduce overcriminalization through a systematic process called criminal code recodification.

Recodification attempts to locate every criminal penalty imposed by state law, resulting in a revision and reduction of a state’s criminal codes and other statutes carrying criminal penalties. One example of statutes that could be consolidated in North Carolina’s code are the dozens of larceny (a form of theft) statutes that apply to different types of property. Recodifying a state’s criminal laws can help citizens, police, and prosecutors alike more clearly understand the scope of criminal liability for certain conduct under state law.

A Matter of Intent

The punishment imposed for criminal conduct should match the offense committed and the harm caused. In order to ensure proportionality of punishment, criminal laws should distinguish between intentional acts, reckless acts, and simple accidents. Each criminal statute should carry a clearly articulated standard of intent that prosecutors must prove to acquire a conviction. A default standard should exist in law for judges to utilize in criminal cases where the intent standard of a statute is missing or ambiguous.

While Congress has failed multiple times to pass mens rea reform, two states have succeeded. Ohio adopted the nation’s first comprehensive mens rea reform in 2014, with legislation requiring that every new criminal offense enacted by the legislature include a criminal intent standard or be considered void. The new law also imposed a default mens rea standard of recklessness on all elements of existing criminal statutes that lacked such a standard. Michigan followed Ohio’s lead in 2015 by adopting similar reforms. Today, thirteen other states have some form of default criminal intent standards in their state statutes.

These are signs of hope, but there is much work to be done. Otherwise, hosting a bingo game that lasts more than five hours just might get you into big trouble.

Jeremiah Mosteller, Policy Liaison, Criminal Justice


The Next Step After the First Step Act: Purge the U.S. Criminal Code

Originally published at Manhattan-Institute by Rafael A. Mangual | January 1, 2019

The passage of the First Step Act — the criminal-justice and prison-­reform bill championed by President Trump — was a rare bipartisan triumph in this age of deep polarization.

But the bill left much unaddressed and was missing another reform that conservatives have long pressed for: namely, stopping the explosion in the number of federal crimes, well beyond what the average citizen should be expected to know or abide by.

Call that the Next Step.

Given the bipartisan cooperation behind First Step, congressional Republicans should now nudge their Democratic colleagues to ­address the serious issue of federal overcriminalization.

That means addressing four main problems.

First, as already mentioned, there is the sheer number of federal criminal prohibitions on the books. Though no one can say for sure just how many federal crimes exist, estimates put the number at more than 300,000, a ridiculous number of crimes for Americans to be versed in.

These include prohibitions on selling “spaghetti sauce with meat” that contains less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle and walking a dog on a leash longer than six feet on federal property.

Second, a majority of federal crimes lack meaningful intent ­requirements, bucking centuries of legal tradition requiring that prosecutors establish mens rea (that the defendant acted with a guilty mind) to secure a conviction.

This lack of intent requirements is especially troubling considering the fact that thousands upon thousands of federal statutes could result in a felony conviction if violated.

Third, many federal crimes are, counterintuitively, codified outside the federal criminal code (Title 18). Instead, they are sprinkled throughout the many thousands of pages of federal statutes and regulations.

Finally, less than 2 percent of federal criminal law — about 5,000 of the more than 300,000 crimes — are statutes passed by both houses of Congress and signed into law by the president. Instead, the overwhelming majority are criminally enforceable regulations created by politically unaccountable bureaucrats.

This last problem is best understood as “criminalization without representation.” It is a direct threat to individual liberty and a hindrance to a well-functioning market economy.

Collectively, these problems have created a body of criminal law that is far too large and disorganized for anyone to read, let alone internalize. Coupled with the erosion of criminal-intent standards, this means that each of us by some estimates commits, on average, three federal felonies a day.

In addition to significantly raising the cost of legal compliance, which in turn raises the cost of ­doing business, overcriminalization tramples on core American principles of representation, fair notice and due process.

So what should the “next step” look like?

First, it should include a default criminal intent standard that would apply to any federal crime that doesn’t explicitly state whether, and to what extent, a showing of intent is a prerequisite for conviction.

This was part of an earlier bipartisan package of reforms scuttled at the last minute by the Obama administration and opposed by left-wing groups, though many of these same outfits loudly backed the First Step Act.

Second, the next reform should restore political accountability to the process of crime creation by restricting to civil enforcement all rules that haven’t passed both houses of Congress through the process most of us have been familiar with since childhood, thanks to “Schoolhouse Rock.”

Enacting such reforms to reduce federal overcriminalization would require Democrats to reciprocate the support they recently received from Republicans for First Step. Given the midterm-election results, that may be a tall order. Yet it should be made a priority not merely as a show of bipartisanship, but because, as the president said of the First Step Act, it’s “the right thing to do.”


Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute. Follow him on Twitter here.


The Threat of Creeping Overcriminalization

Originally published at Cato Institute by Caleb Brown| November 2, 2018

Shon Hopwood is both a former felon and a professor of law at Georgetown. At Cato Club 200, he detailed his case for sweeping criminal justice reform.

You can support the Cato Daily Podcast and the Cato Institute by becoming a Podcast Sponsor.


Tammie Hedges and the Overcriminalization of America

Originally published at National Review by James R. Copland and Rafael A. Mangual| October 11, 2018

Across the country, well-meaning Americans face the threat of prosecution for violating state laws that criminalize unobjectionable behavior.

In the wake of Hurricane Florence, North Carolina prosecutors served Tammie Hedges with a twelve-count criminal indictment. Hedges runs a non-profit group, Crazy’s Claws N Paws, and during the storm she offered both shelter and basic first aid to pets whose evacuating owners could not take them along. Local officials, at the behest of the state’s Department of Agriculture, accused Ms. Hedges of practicing veterinary medicine without a license.

Facing a public outcry, prosecutors have since dropped these charges. But other individuals who find themselves in the state’s prosecutorial crosshairs have had to go to court to vindicate their rights. Among these was another North Carolinian, Steve Cooksey, who in 2012 was accused by the state of the unlicensed practice of dietetics after he blogged about his dietary practices. Cooksey eventually won a challenge before the U.S. Court of Appeals on First Amendment grounds, but Steven Pruner, another North Carolinian, was not so lucky: In 2011, he was sentenced to 45 days of police custody for selling hot dogs without a permit from his food cart outside the Duke University Medical Center.

North Carolina is hardly alone in criminally prosecuting individuals who unknowingly run afoul of picayune regulatory laws with little to no public-health or -safety purpose. An Oklahoma bartender was prosecuted for serving vodkas infused with flavors like bacon and pickles; a Minnesota man was jailed for the crime of not finishing the siding on his own house; and a California mom was prosecuted for selling homemade ceviche through a recipe-exchange group on Facebook.

In every state in the union, well-meaning individuals face the threat of prosecution for violating regulations that criminalize morally unobjectionable behavior. A new Manhattan Institute report we co-authored assesses the state of criminal law across multiple states and finds that unnecessary criminal statutes abound. States’ criminal codes are three to ten times longer than the Model Penal Code promulgated by the august collection of scholars and practitioners at the American Law Institute. More than 77 percent of new crimes are codified outside the criminal code. And a large fraction of state crimes are never voted on by elected representatives, because criminal-lawmaking power is regularly delegated to bureaucrats or even private licensing boards.

Call it “criminalization without representation.”

Some of the criminal regulations we have studied are silly, such as an old South Carolina law promising jail time for the unlicensed practice of fortunetelling. (Exactly how one would license a fortuneteller remains unclear.) Others make some sense — including the veterinary-licensing requirements that ensnared Ms. Hedges. (Dispensing potentially dangerous pharmaceuticals to care for Spot and Fido raises legitimate public-health and -safety concerns.) But the proliferation of criminal laws makes it almost impossible for citizens to know what can land them in handcuffs.

What, then, is to be done? There are various steps states can take to streamline their criminal laws, protect those who unknowingly violate rules, and make lawmakers more accountable.

Legislatures should focus on making their criminal laws easier to follow, as well as on trimming unnecessary, duplicative, and unjust statutes from the books. Earlier this summer, the North Carolina legislature gave its imprimatur to a working group tasked with recodifying the state’s crimes into a comprehensive criminal code. In 2014, Minnesota governor Mark Dayton called the legislature into an “unsession” focused on pruning outmoded laws; more than 1,175 crimes were repealed in the effort. Other states would be wise to follow such examples.

Legislatures should also enact rules that protect individuals who unintentionally violate a rule that does not involve dangerous or onerous conduct. All states should join the 15 that have established a default level of criminal intent that prosecutors must prove to secure a conviction, unless the legislature expressly says otherwise. States should also expand the ability of individuals to assert a “mistake of law” defense if they can show they made a genuine good-faith effort to comply with legal rules.

Finally, legislatures should stop the practice of delegating their criminal-lawmaking authority to unelected officials. Regulatory agencies may be better equipped to draft complex regulatory codes, but there is little excuse for allowing them to unilaterally write rules that can land citizens behind bars.

After all, most individuals and businesses unlucky enough to run afoul of such laws won’t be as lucky as Tammie Hedges, who escaped prosecution largely because her case made national news. If we’re serious about addressing the problem that landed an animal lover in handcuffs, it’s time we started reversing the overcriminalization of America.

— James R. Copland and Rafael A. Mangual are the authors of the recent Manhattan Institute study, Overcriminalizing America: An Overview and Model Legislation for the States.


Overcriminalizing America: An Overview and Model Legislation for States

Originally published at Manhattan-Institute by James R. Copland and  Rafael A. Mangual | August 8, 2018


Building on previous MI studies, this paper lays out the contours of America’s state-level overcriminalization problem. Today, state statutory and regulatory codes overflow with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.

The proposed model legislation and executive order in this paper offer a framework for state lawmakers to address the overcriminalization problem. These policies:

  1. Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
  2. Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
  3. Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created.



American law today has a way of making criminals out of ordinary citizens and small business owners:

  • In 2016, authorities in Oklahoma prosecuted bartender Colin Grizzle for serving vodkas infused with flavors like bacon and pickles. The practice, though popular with patrons, violated Title 37, Chapter 3, Section 584 of the Oklahoma Code.[1]
  • In 2012, a Minnesota man, Mitch Faber, was jailed for the crime of not finishing the siding on his own house.[2]
  • In 2011, North Carolina authorities prosecuted Steven Pruner for selling hot dogs from his food cart outside the Duke University Medical Center without a permit. Pruner was sentenced to 45 days of police custody.[3]

Parents today face criminal sanction if they let children run free—as South Carolina mother Debra Harrell discovered in 2014, when she was arrested and lost custody of her nine-year-old child, whom she had allowed to play alone in a park.[4] But parents who drop children off in others’ care can unwittingly place their friends in criminal jeopardy; in 2009, a Michigan woman, Lisa Snyder, was threatened with arrest after it was discovered that she was taking her neighbors’ kids to the school bus stop each morning, which state regulators considered a violation of laws banning unlicensed day care.[5]

In some cases, states have delegated criminal lawmaking authority to unelected regulators and private boards. Such boards have asserted surprisingly sweeping powers. In 2012, the North Carolina Board of Dietetics and Nutrition accused Steve Cooksey of an unlicensed practice of dietetics, a misdemeanor under a catchall provision criminalizing any violation of dietetics or nutrition provisions in the general statutes.[6]

Cooksey’s crime? After battling life-threatening diabetes, he had started an Internet blog, in which he shared his experiences, described how a new diet had helped him overcome his serious condition, and answered questions posed by blog readers.[7] According to the board, the crime extended to ordinary advice exchanged in private e-mails and telephone calls between his friends and readers.[8] Cooksey ultimately prevailed in a First Amendment challenge to the law brought by the litigation nonprofit Institute for Justice;[9] but individuals and business owners without such strong free-speech claims are not afforded a similar ability to get out of jail.

Cooksey’s alleged violation was unknowing—but that offered him little recourse. In most jurisdictions, the fact that someone accused of a crime was engaged in seemingly innocent conduct and had no reason to know that he was breaking the law affords no defense.

In 2007, a Michigan appeals court upheld the conviction of Kenneth Schumacher for the unlawful disposal of scrap tires, which included a sentence of 270 days in jail and a $10,000 fine. Schumacher had not known that the facility where he deposited his tires had seen its permit expire; he believed it to be a legal depository.[10] The court nevertheless determined that Schumacher’s subjective judgment that his delivery was legal did not absolve him of the environmental law’s strict licensing rule.[11] (Michigan has since adopted a law that requires a showing of criminal intent for any crime unless the legislature expressly states otherwise; but it remains a minority rule across the states, including in North Carolina.)

These cases exemplify “overcriminalization,” which describes the rapid growth in the number of criminally enforceable rules and regulations. Overcriminalization particularly refers to crimes for conduct that is not intuitively thought of as criminal.

Overcriminalization in the U.S. has drawn increasing scrutiny by politicians,[12] judges,[13] scholars,[14] and policy analysts.[15] In 2010, coauthor Copland published a book chapter looking at overcriminalization in New York State.[16] Four years later, the Manhattan Institute began to systematically study overcriminalization at the state level, through jurisdiction-specific analyses of quantitative and qualitative trends in state criminal lawmaking. Reports on criminal law in Michigan,[17] Minnesota,[18] North Carolina,[19] Oklahoma,[20] and South Carolina,[21] as well as additional analysis of surrounding states, identified overcriminalization as a serious problem.

Overcriminalization goes beyond the mere presence of too many laws on statute books. Our research has highlighted fundamental deficiencies in how crimes are created and codified. These deficiencies undermine political accountability and erode the structural limits on government action that preserve our freedoms. Overcriminalization is exacerbated by the erosion of traditional intent requirements and other due-process protections in criminal cases.

This paper builds upon the collective findings of our series of state-specific reports and proposes model legislation and executive orders that states can adapt to ameliorate overcriminalization.

Overcriminalizing America

Too Many Crimes

It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

James Madison, Federalist No. 62

In the Overcriminalizing America series of reports, Manhattan Institute scholars observed bloated criminal codes—sometimes several times larger than the Model Penal Code (Figure 1). (The Model Penal Code is a document drafted by the American Law Institute—an independent group of lawyers, judges, and academics—to “assist legislatures in making a major effort to appraise the content of the penal law by a contemporary reasoned judgment.”)[22]

In comparison with the Model Penal Code’s 114 sections, the criminal codes in Michigan and North Carolina, measured in 2014, had 918 and 765 sections, respectively; those in Minnesota, Oklahoma, and South Carolina, measured in 2016, contained 327, 1,232, and 557 sections, respectively. These state criminal codes varied between 129,000 and 293,000 words. Michigan’s criminal code, for example, uses 266,300 words—taking up 500 pages of 10-point, double-spaced Times New Roman text.

As voluminous as these state criminal codes are, they only begin to scratch the surface in cataloging how many crimes are actually on a state’s books. Many state crimes are codified not in penal codes but in other parts of the broader statutory code, in the vast array of agency-created regulation, and even in private licensing-board rules that have de facto criminal effect through “catchall” statutory delegations of criminal lawmaking power. In each of the five states studied in the Overcriminalizing America series, a majority of new crimes created by statute in the preceding six years were codified outside the criminal code—including 83% of new crimes enacted in Minnesota, 86% of new crimes enacted in South Carolina, and 91% of new crimes enacted in Oklahoma.

During the six-year periods studied, the five states added to their criminal statutes at alarming rates (Figure 2), creating 26–60 new crimes annually—an average of 42 per year. Many of the new crimes created in these jurisdictions were felonies (Figure 3).

The creation of new crimes has hardly slowed down in the years since we released our reports. During the 2015–16 legislative sessions in Michigan,[23] North Carolina,[24] and South Carolina[25], the state legislatures added an average of 37 new crimes to their books.

Outmoded, Silly, and Poorly Written Laws

“We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws.”

Antonin Scalia, Sykes v. United States, 564 U.S. 1 (2011)

What do some of the crimes populating state statute books look like? Many are duplicative. For example, in 2012, North Carolina enacted a statute criminalizing the theft or vandalizing of portable toilets—acts presumably covered by the state’s general prohibitions on theft and vandalism.[26] The separate codification of acts covered by existing statutes makes the criminal law harder for the average citizen to follow.

Other crimes created during the periods studied border on the ridiculous. Consider a 2011 Oklahoma statute criminalizing the “[f]ailure to leave any gates, doors, fences, road blocks and obstacles or signs in the condition in which they were found, while engaged in the recreational use of the land of another.”[27] Some statutes are so poorly drafted that they remove all objectivity from the process of determining whether a crime was committed. This was the case for a 2012 Minnesota statute prohibiting drug and alcohol abuse counselors from imposing on their clients “any stereotypes of behavior, values, or roles related to human diversity.”[28] What constitutes such a stereotype is left undefined in the statute.

When considering the problems created by ill-considered new additions to the statute books, often overlooked are the problems that stem from old crimes that, while rarely enforced, remain on the books, contributing to the obesity of a state’s body of criminal law. In South Carolina, for example, an old law prohibits, on pain of imprisonment, unlicensed fortune-telling. How one goes about the licensing of fortune-tellers is unclear. A more important question is why such an archaic statute should remain on the books. We have found no example of present-day enforcement of this law.

Other examples include:

  • Prohibiting the temporary taking of horses or mules (North Carolina)[29]
  • Breaking the Sabbath (Oklahoma)[30]
  • Prohibiting minors under the age of 18 from playing pinball (South Carolina)[31]

The constant creation of new crimes, coupled with the failure to prune the statute books of old crimes, raises the transaction costs of legal compliance and exacerbates one’s risk of becoming entangled in the ever-growing web of state criminal law.

Counterintuitive Codification

“We concluded that the hunt to say, ‘Here is an exact number of federal crimes,’ is likely to prove futile and inaccurate
James Strazzella, author of the american bar association report “The Federalization of Criminal Law”

Imagine being the proprietor of a small business and wanting to figure out whether something is a criminal offense. Where do you look? Most would answer: “The criminal code.” Yet that would be a risky proposition: newly created crimes are often codified outside state criminal codes, in other chapters of the broader statutory code. Indeed, in all five states that we examined, a majority of the crimes created during the six-year periods studied were codified outside their respective criminal codes: 55% for North Carolina, 73% for Michigan, 83% for Minnesota, 86% for South Carolina, and 91% for Oklahoma (Figure 4).

When crimes are codified outside a state’s criminal code, people who want to stay out of prison must sift through every chapter of the state’s broader statutory code. Parsing through volumes of code with word counts exceeding Tolstoy’s War and Peace is difficult for a trained legal professional, let alone a layman. After such parsing, one would still need to read the broad array of catchall provisions attaching criminal liability to the rules and regulations promulgated by agency officials, government boards, and private licensing bodies.

Erosion of Mens Rea

“Even a dog knows the difference between being kicked, and being stumbled over.”

Oliver Wendell Holmes, Jr., The Common Law (1888)

The long-standing tradition in Anglo-American legal systems has been that every crime has two elements: (1) it is a bad act (Latin: actus reus); and (2) it is undertaken with a guilty mind (mens rea).[32] The criminal law has also recognized that there are varying levels of culpability. Generally speaking, offenders can act purposefully, knowingly, recklessly, and negligently. These are terms of art whose definitions are not necessary to set out here; but readers should have a sense of the historical backdrop with which they should view current trends in criminal lawmaking.

State lawmakers have often failed to specify any intent requirements in the crimes that have been added to statutory codes in recent years. In Michigan, a study done by the Mackinac Center for Public Policy found that of the 3,102 crimes on state books in 2014, 27% of felonies (321 of 1,209) and 59% of misdemeanors (1,120 of 1,893) contained no mens rea provision.[33]

Many state courts have interpreted statutory silence on criminal intent as the legislature’s intent to create a strict-liability offense (one for which proof of mental culpability is not required). But this is unlikely. Statutory silence on intent in most cases does not reflect a considered decision on the part of legislators to create a strict-liability crime; rather, it is a likely by-product of ad hoc decision making by different statutory drafters. Regardless, inverting the Model Penal Code’s default rule that mens rea is required absent an express statutory command to the contrary leaves citizens at even greater risk: prosecutors would have only to prove that the defendant committed the prohibited act or omission.

Criminalization Without Representation

“Governments are instituted among Men, deriving their just powers from the consent of the governed.”

—Declaration of Independence (1776)

Due to the sweep of the modern regulatory state, legislators regularly delegate details to the executive branch or, in some cases, to private bodies. Statutory catchall provisions make it a crime to violate any of the vast swaths of rules, regulations, and permitting requirements developed outside legislative input or review. We have dubbed this phenomenon “criminalization without representation.”[34]

In North Carolina, for example, statutory catchall provisions make it a crime to violate any rule adopted by various boards, agency commissioners, and secretaries in the areas of public health, agriculture, and environment,[35] as well as private licensing boards in medicine, dentistry, and nutrition.[36] Further, most local ordinance violations in North Carolina are state criminal misdemeanors.[37] None of these catchall provisions contains any criminal-intent standard, despite the fact that much of the prohibited conduct is unlikely to be intuitively criminal.

North Carolina is not unique. Similar statutory catchall provisions delegating state criminal lawmaking power to unelected or local boards, or to single executive branch officials, exist in the other states studied.[38] Such catchall provisions attach criminal penalties to each rule promulgated by a non-legislative individual or board before any rule is actually created. When criminal rules are then promulgated, after the statute in question becomes law, the elected legislature is not required to review or approve the new crimes.

For an example of how criminalization without representation works, consider a 2010 Oklahoma law, the “Pet Breeders Act,” which, in addition to creating criminal penalties for violating the act, criminalized the violation of “any rule [later] adopted under the [Act].”[39] How voluminous were the subsequently promulgated rules? They exceeded 20 pages with more than 43 sections, highlighting just how much the use of regulatory catchalls can inflate a state’s body of criminal laws.[40]

Fixing the Overcriminalization of America

This report paints an unflattering picture of state criminal law. But there is some light shining through the clouds. Some state legislatures have adopted measures to stem the tide of overcriminalization. The five reforms proposed below—and the accompanying model legislation and executive orders—would build upon these recent legislative successes.

Restore Criminal Intent

One way to protect well-meaning citizens against prosecution for crimes that they unknowingly commit is to ensure that prosecutors meet the same burden of proof for both of the traditional elements of a crime. That is, the government should have to prove criminal intent in prosecuting alleged regulatory offenses—which are not intuitively criminal in nature—just as it is required to do in cases involving more serious offenses.

Fifteen states have adopted default criminal-intent statutes that establish a baseline level of intent that prosecutors must establish to secure a conviction.[41] These default provisions are typically triggered when the criminal statute or regulation in question is silent as to criminal intent.

Unfortunately, even states that have adopted these mens rea rules have sometimes omitted crimes that ordinary citizens are likely to find the least intuitively criminal. For example, Kansas’s default criminal-intent statute applies only to offenses in the state’s criminal code, despite the fact that the criminal code is likely to contain only a minority of the state’s statutory crimes. Kansas and other states should therefore expand their default criminal-intent statutes to apply to offenses listed throughout their entire statutory code.

While including an intent requirement in all criminal statutes may be good policy, legislators may wish to retain the power to create strict-liability offenses in certain cases. Default mens rea laws, such as our proposed model legislation, would not prohibit lawmakers from doing so. Instead, a default criminal-intent statute simply prohibits courts from interpreting statutory silence on criminal intent as the legislature’s desire to create a strict-liability offense. Once such a default is adopted, lawmakers who wish to create a strict-liability offense would have to do so explicitly in the statutory language.


Sec. 1

1. Except as otherwise provided in this section, a person is not guilty of a criminal offense for which incarceration is statutorily a potential punishment, committed on or after the date of the passage of this Act by both legislative chambers, unless both of the following apply:
A. The person’s criminal liability is based on conduct that includes either a voluntary act or an omission to perform an act or duty that the person is capable of performing.
B. The person has the requisite degree of culpability for each element of the offense as to which a culpable mental state is specified by the language defining the offense.
2. If the statutory language setting out the elements of a criminal offense explicitly imposes strict criminal liability for the conduct described in the statute, then mental culpability is not required for a person to be guilty of the offense.
3. If a subsection of a statute plainly imposes strict criminal liability for an offense defined in that subsection but does not plainly impose strict criminal liability for an offense defined in another subsection, the offense defined in the subsection without a plain imposition of strict criminal liability should not be inferred to be a strict-liability crime.
4. Statutory silence as to mental culpability (mens rea) with respect to an offense or element of an offense shall not be construed as the legislature’s intent to impose strict criminal liability for any offenses set out therein.
5. If statutory language defining an element of a criminal offense that is related to knowledge or intent or as to which mens rea could reasonably be applied neither specifies mental culpability nor plainly imposes strict liability, the element of the offense is established only if a person acts with intent, or knowledge.
A. “Intent” means a desire or will to act with respect to a material element of an offense if both of the following circumstances exist:
i. The element involves the nature of a person’s conduct or a result of that conduct, and it is the person’s conscious object to engage in conduct of that nature or to cause that result.
ii. The element involves the attendant circumstances, and the person is aware of the existence of those circumstances or believes or hopes that they exist.
B. “Knowledge” means awareness or understanding with respect to a material element of an offense if both of the following circumstances exist:
i. The element involves the nature or the attendant circumstances of the person’s conduct, and the person is aware that his or her conduct is of that nature or that those circumstances exist.
ii. The element involves a result of the person’s conduct, and the person is aware that it is practically certain that his or her conduct will cause that result.

Sec. 2

1. Nothing in this Act shall be construed to alter the state of the law with respect to the legal effect or lack thereof on criminal liability of the voluntary consumption of a substance or compound one knows or reasonably should know may lead to intoxication or impairment.

Expand the Mistake-of-Law Defense

The “mistake-of-law” defense is a legal mechanism through which a defendant who committed a prohibited act can argue that he nevertheless acted in good faith. If successfully invoked, a mistake-of-law defense can rebut the presumption that a defendant knew and understood the law.

Mistake of law is an affirmative defense, i.e., a criminal defendant must advance it to negate legal liability. The defense requires a defendant to establish that he:

(1) erroneously conclude[d] in good faith that his particular conduct [was] not subject to the operation of the criminal law; (2) ma[de] a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded or [sic] under our legal system, to ascertain and abide by the law; [and] (3) act[ed] in good faith reliance upon the results of such effort.[42]

The defendant must also show that “the conduct constituting the offense is neither immoral nor anti-social.”[43]

Traditionally, a mistake-of-law defense has been viable only in limited circumstances: when the law in question had not yet been published; when the defendant relied on an official interpretation of the law by a prosecutor or other applicable official; or when the defendant relied on a subsequently overruled judicial opinion. The proposed model legislation would expand the applicability of the defense. If a defendant “erroneously concludes in good faith” that his conduct is not illegal, the model legislation would allow him to present a mistake-of-law defense to a jury—even if the law in question was already published or he was not relying on a judicial opinion or an official interpretation from a government official.

This sort of expansion would offer well-meaning citizens an important layer of protection against criminal liability for acts committed despite having made a good-faith effort to comply with the law—so long as they could convince a jury of their good faith. The model mistake-of-law defense would not apply to cases involving violence, property destruction, or the possession or distribution of narcotics, thereby minimizing the possibility that the policy would harm public safety.



“Mistake of Law” is an affirmative defense[44] that, if proven by a preponderance of the evidence, negates the criminal-intent element of a specific-intent crime.


The mistake-of-law defense is a cognizable defense when all of the following elements are established:
1. charges are brought in criminal court;
2. the statutory or regulatory offense(s) in question are not strict-liability offenses, and the state is required to establish criminal intent beyond that to merely perform the act or omission constituting the offense;
3. the defendant erroneously concludes in good faith that his particular conduct is not subject to the operation of criminal law;
4. the defendant makes a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded under our legal system, to ascertain and abide by the law; and
A. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, appropriate means are not limited to reliance on official interpretations or judicial decisions, consultation with a licensed attorney, and, where the offense alleged was committed in a business setting, seeking the advice of internal compliance professionals;
B. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, enactment and publication of a law or regulation shall not be deemed to negate a mistake of law defense as a matter of law;
5. the defendant acts in good-faith reliance upon the results of such effort.

Recodify the Criminal Law

In North Carolina, lawmakers introduced a bill to establish a “recodification task force.” When the proposed legislation stalled, stakeholders from public-policy organizations and the North Carolina government formed an informal working group that took on the tasks outlined in the proposed legislation. The group has since been formally recognized by the state’s legislature, which passed a bill to deliver to the group requested data and other information.[45]

A recodification task force would reorganize a state’s criminal law into a single, comprehensive code of all criminal offenses. Providing a single source in which all criminal offenses are set out would lower the risk that ordinary citizens acting in good faith unknowingly commit a criminal offense, as well as (likely) improve compliance with the criminal law.

The task force would be free to make recommendations to exclude or include various provisions in the comprehensive code being proposed—consistent with the goal of lowering the transaction costs associated with legal compliance. The comprehensive code proposed by the task force could be amended by, and adopted in whole or in part by, the legislature.



There is established the Criminal Code Recodification Commission (hereinafter “[the] Commission”) within the [state name] Judicial Department’s Office of Court Administration {or equivalent}.

The Commission shall be composed of twenty-one members to be appointed as follows {note: composition may vary based on state constitutional structure, statutory schemes, or political realities}:
1. Four members of the Senate appointed by the President Pro Tempore of the Senate. At least one Senate member must be a member of the minority party at the time of the Commission’s creation.
A. Senate members may designate a member of their staff to represent them at meetings of the Commission, but the ability to vote on any matters before the Commission shall be reserved to appointed members.
2. Four members of the House of Representatives appointed by the Speaker of the House of Representatives. At least one House member must be a member of the minority party at the time of the Commission’s creation.
A. House members may designate a member of their staff to represent them at meetings of the Commission, but the ability to vote on any matters before the Commission shall be reserved to appointed members.
3. Two members appointed by the Governor.
4. The Lieutenant Governor, or the Lieutenant Governor’s designee, and one additional member appointed by the Lieutenant Governor.
5. Two sitting sheriffs or police department chiefs, of which one shall be appointed by the President Pro Tempore of the Senate, and the other appointed by the Speaker of the House.
6. Seven members appointed by the Chief Justice of the [state name] Supreme Court as follows:
A. A sitting superior court judge
B. A sitting intermediate appellate court judge
C. Two state penitentiary wardens
D. A sitting district attorney
E. A sitting public defender
F. A member of the private criminal defense bar
7. The Chair of the Commission will be selected by the Governor from among the appointed members.

The Commission shall produce the following:

1. Within eighteen months from the effective date of this Act, a fully drafted, new, streamlined, comprehensive, orderly, and principled criminal code.
2. Official commentary appended to the new code explaining how it will operate. Said commentary shall identify, explain, and provide justification for changes in current law.
3. An offense grading table appended to the new code grouping all offenses covered by the new code by offense grade. Offenses shall be graded within existing sentencing classes.


In producing deliverables outlined in Sec.’s 3(1)–(3), the Commission shall:

1. Incorporate into the new code all major criminal offenses contained in existing law that the Commission has not chosen to exclude.
2. Include necessary provisions not contained in the current code, such as default mental state requirements as an essential element of criminal liability, a listing of affirmative defenses and their elements, and definitions of offenses and key terminology with corresponding citations to governing precedent when applicable or deemed helpful by the Commission.
3. Exclude from the new code unnecessary, duplicative, inconsistent, or unlawful provisions of current law. Note in commentary whether criminally enforceable provisions of current law that have been excluded from the code should remain available for civil enforcement through the levying of fines, or repealed altogether.
4. Use language and syntactical structure to make the law easier to understand and apply.
5. Ensure that criminal offenses are cohesive, rational, and consistent with one another.
6. Make recommendations regarding whether, and if so, what, limitations should be placed on the ability of administrative boards, agencies, local governments, appointed commissioners, or of other persons or entities to enact rules that will, pursuant to the enabling statute, be eligible for criminal enforcement.
7. Address any other matter deemed necessary by the Commission to carry out its legislative mandate.

Repeal Outmoded, Unnecessary, and Unconstitutional Criminal Laws

Some states have undertaken legislative efforts to clean up their statute books by repealing unnecessary, outmoded, and duplicative criminal offenses. In Kansas, for example, the state established an “Office of the Repealer” in 2011. The primary aim of the office was to review the body of criminal law and continuously flag provisions ripe for repeal, which the legislature could then choose to act upon.[46] In Michigan, Governor Rick Snyder signed, in 2015, a bill repealing a number of outmoded crimes[47]—the legislature’s response to the governor’s call for such reforms earlier that year.[48]

While these efforts are laudable, they do not go far enough, considering the rate at which lawmakers are adding new criminal offenses to the books. One state studied by the Manhattan Institute, however, does offer a fine example of how to undertake a large-scale repeal effort. In 2014, Minnesota’s legislators repealed more than 1,175 crimes in what was dubbed the legislative “unsession.”[49] The unsession was the outgrowth of a push by Governor Mark Dayton to prune unnecessary and outmoded laws piling up on state books.[50]

Dayton persuaded lawmakers to take up a long list of crowd-sourced reform proposals during its short even-year legislative session.[51] States wishing to address overcriminalization should consider using Minnesota’s approach. In addition, states should consider appointing a task force to offer recommendations, which could focus and refine crowd-sourced proposals, as well as facilitate bipartisanship.

The proposed model legislation would not create or mandate a legislative “unsession”—traditional notions of the separation of powers argue against having the executive branch of a state government set the agenda for the legislative branch. Instead, we suggest two mechanisms, legislative resolution and executive order, through which states could create an overcriminalization task force. Such a task force would be charged with reviewing the criminal law with an eye toward identifying provisions ripe for repeal. The legislature could then consider the suggestions of the task force, ideally during a special legislative “unsession.”


Whereas, overcriminalization, defined as the growth of criminal statutes within a state’s code of laws, exists as a phenomenon within the state of ______________; and
Whereas, it is in the public interest for the State to establish a ________________ Overcriminalization Task Force to study the presence of the criminal law and how the entirety of the criminal law and state policies affect this population.
Now, therefore,
Be it enacted by the General Assembly of the State of __________________:


SEC. 1

1. There is hereby established the [State Name] Overcriminalization Task Force (hereinafter “task force”) to study and review the scope and application of the criminal law and to examine how the criminal law affects the population of this state.
2. The task force shall consist of thirteen members, composed as follows:
A. the Director of the [State Name] Department of Corrections, or his designee, shall serve ex officio and shall be the chairman of the task force;
B. twelve members who shall be appointed as follows:
i. Six members shall be appointed by the President Pro Tempore of the Senate. Two shall be members of the Senate, at least one of whom shall be a member of the majority political party represented in the General Assembly and at least one of whom shall be a member of the largest minority political party represented in the General Assembly. One shall be a member of the public at large; and
ii. Six members shall be appointed by the Speaker of the General Assembly. Two shall be members of the House of Representatives, at least one of whom shall be a member of the majority political party represented in the General Assembly and at least one of whom shall be a member of the largest minority political party represented in the General Assembly. One shall be a member of the public at large; and
3. the task force shall organize as soon as practicable following the appointment of its members and shall select a vice chairperson from among its members.
4. The members of the task force shall be appointed no later than thirty days after the effective date of this act.
5. Vacancies in the membership of the task force shall be filled in the same manner provided by the original appointments.
6. The members shall serve without compensation and may not receive mileage or per diem. The task force may meet and hold hearings at the places it designates during the sessions or recesses of the legislature; and, wherever practicable, the General Assembly shall make meeting space available to the task force upon request.
7. The findings and recommendations of the task force shall be reported to the Governor and the General Assembly no later than twelve months after the initial meeting of the task force. The report shall principally identify the laws the task force recommends to the General Assembly for repeal.

8. The task force shall dissolve immediately after submitting its report to the Governor and the General Assembly.


State of _______________
Executive Department
Office of the Governor
Executive Order No. 20XX-XX
Whereas, overcriminalization, defined as the growth of criminal statutes within a state’s code of laws, exists as a phenomena within the state of ____________________; and
Whereas, it is in the public interest for the State to establish a ____________________ Overcriminalization Task Force to study the presence of the criminal law and how the entirety of the criminal law and state policies affect this population.
Now, therefore, pursuant to the authority vested in me by the Constitution and Statutes of the State of __________________, I hereby establish the Governor’s Overcriminalization Task Force (“Task Force”) to be composed of ______________ members to include _____________________, appointees from the majority and minority leaders of the Senate and House of Representatives, and representatives from different business sectors and the conservation community, of which I shall designate the chairperson. I hereby direct the Task Force as follows:


1. Task Force Mission: To study and review the body of criminally enforceable rules and regulations and submit a report to the General Assembly identifying those criminal laws and regulations it recommends for repeal.

2. Duties and responsibilities:

A. The Task Force shall evaluate the reports submitted by agencies, pursuant to Section II, that identify current and proposed statutes, rules, regulations, and policies that add new crimes or criminally-enforceable provisions to ________ laws, rules, and regulations.
B. The Task Force shall cooperate and coordinate with the appropriate state agencies, as practicable, to identify current and proposed crimes or criminally-enforceable provisions in state laws, rules, and regulations.

C. The Task Force shall conduct public hearings and solicit input from businesses, employers, conservation groups, professional associations, state agencies, and other interested persons and groups to develop its final report. As practicable, the Task Force shall conduct public hearings in local communities around the State.

D. Staff will be designated to assist the Task Force in developing its report.
E. The Task Force shall submit its final report on or before ________ XX, 20XX, to the Governor and the members of the General Assembly.
FURTHER, I hereby direct all Cabinet agencies and encourage all other executive agencies as follows:


1. Each agency shall identify its current and proposed statues, rules, regulations, and policies that expand the existing quantity of criminal laws in ________ using the following guidelines:

A. Each agency shall comprehensively review all current and proposed statutes, rules, regulations, and policies in order to assess their effects on the criminal law of ________ to determine whether they are exceedingly vague, duplicitous, antiquated, enforced, proportional to their punishments, and contain reasonable culpability requirements.

B. In evaluating statutes, rules, regulations, and policies, each agency should consider factors to include, but not limited to, their necessity, complexity, efficiency, effectiveness, redundancy, public complaints or comments, short- and long-term effects, impact on all affected persons, both intended and unintended, and unintended negative consequences.

2. Each agency shall submit a written report to the Task Force on or before _____ XX, 20XX, providing detailed recommendations to repeal or amend any provisions that unduly burden businesses and citizens of this State.

3. Each agency is authorized to call upon any department, office, division, or agency of this State to supply it with data and other information, personnel, or assistance it deems necessary to discharge its duties under this Order. Each department, officer, division, or agency of the State is hereby required, to the extent not inconsistent with law, to cooperate with another agency and to furnish it with such information, personnel, and assistance as is necessary to accomplish the purpose of this Order.

4. Each agency shall take care to solicit both written and oral comments from the public, including businesses, employees, professional associations, conservation organizations, and other affected persons or entities as the agency deems appropriate and to consider the views expressed by those parties in any report.

This Order is effective immediately.


Eliminate Criminalization without Representation

In every state studied in the Manhattan Institute’s Overcriminalizing America series, lawmakers have delegated effective criminal lawmaking authority to, among others, executive-branch officials, commissions, and private licensing boards. Such delegation makes legal compliance even more complicated for ordinary citizens.

Moreover, each state that we have examined has a large number of crimes that were never voted on, or even reviewed, by anyone who must answer to voters. Criminalization without representation concentrates power in the hands of unelected officials, undermining political accountability. It also threatens to accelerate the rate of new crime creation.

The proposed model legislation aims to constrain regulators’ power to create crimes without express approval by the legislative branch. The model policy would restrict regulations to the realm of civil enforcement unless and until those regulations survive votes in both chambers of a state’s legislature and are approved by the state’s governor—i.e., unless and until those regulations survive the strictures of bicameralism and presentment.



1. Regulatory “catchall” provision—A provision in legislation that prescribes penalties (specifically criminal penalties, for the purposes of this legislation) for the violation of a rule, or rules, a regulatory body is authorized to promulgate, prior to the promulgation of such rules.
2. Regulatory body—Any governmental agency, quasi-private body, commissioner, or other official, vested with the authority to promulgate regulations of any sort enforceable by the state of _______________.

3. Rule or regulation—Any prohibition or requirement articulated by a regulatory body and enforceable either civilly or criminally by the state of ______________.
4. Criminal enforcement—Any enforcement action brought by the state for which the target of the enforcement action, if found guilty, can be imprisoned, labeled as a felon or misdemeanant under state law, fined more than $10,000, or prohibited from exercising state or federal constitutional rights, including the rights to vote, keep and bear arms, and deny a law enforcement officer’s request to conduct a search pursuant to the Fourth Amendment to the Constitution of the United States.

5. Rules eligible for criminal enforcement—Any rule promulgated pursuant to a grant of legislative authority that contains a “regulatory catchall” provision by which the rule is covered.


1. As of the effective date of this legislation, no rule or regulation covered by a “regulatory catchall” provision, except those that satisfy the requirements set out in

(2, below) may be criminally enforced.
2. A rule or regulation may be criminally enforced if and only if it has been approved—in the form of a joint resolution subject to an up and down vote—by a simple majority of both houses of the _____________ state legislature, and that resolution has been signed by the Governor.
3. Promulgated rules eligible for criminal enforcement

that have not satisfied the requirements set out in

(2, above) will be restricted to civil enforcement unless and until said requirements are satisfied.

4. If no civil enforcement penalties are set out in the legislation authorizing a promulgated rule eligible for criminal enforcement, the penalties for the violation of said rule are as follows—

A. Upon a finding of guilt by a preponderance of the evidence, a fine not exceeding $150 per violation may be levied.
B. Failure to pay any fines levied pursuant to (A, above) can result in additional fines, a finding of contempt of court, or the suspension of a state license related to the offense charged held by the accused.


Building on the Manhattan Institute’s previous findings, this paper lays out the contours of the state-level overcriminalization problem. State statutory and regulatory codes are overflowing with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.

The proposed model legislation and executive order offer a framework for state lawmakers to address the overcriminalization problem. These policies:

  1. Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
  2. Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
  3. Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created

Across the states we have studied, the criminal law tends not to reflect due consideration of whether particular disfavored conduct should be criminalized, rather than dealt with through civil or administrative means; whether it is bad enough to dispense with the long-standing principle that a criminal act requires acting with a guilty mind; and whether the punishment for a given crime fits with parallel offenses, criminal and civil. Such questions can be difficult to answer, especially for the many part-time legislators across the states, constrained by time and resources, and often lacking legal training.

The reforms suggested in this paper implicitly recognize such difficulty—offering protections to criminal defendants acting in good faith, delegating recodification and repeal to focused task forces—while also restoring to the legislature the proper ultimate authority over a government’s awesome power to take away a citizen’s liberty.

Each state is different. Some states have more work to do than others. But we are confident that each state needs reform. It is up to elected state leaders to meet that need with action.


  1. Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds, 2017 Annual Report, July 13, 2017.
  2. “Implementing MACRA,” Health Affairs Policy Brief, Mar. 27, 2017.
  3. Office of Inspector General, U.S. Department of Health & Human Services, “Medicare Hospital Prospective Payment System: How DRG Rates Are Calculated and Updated,” OEI-09-00-00200, Aug. 2001.
  4. Ibid.
  5. Centers for Medicare & Medicaid Services (CMS), “National Health Expenditures.”
  6. Charles Roehrig, “A Brief History of Health Spending Since 1965,” Health Affairs blog, Sept. 19, 2011.
  7. American Medical Association, “RBRVS Overview.”
  8. Congressional Budget Office (CBO), “Factors Underlying the Growth in Medicare’s Spending for Physicians’ Services,” Background Paper #2597, June 2007.
  9. Zirui Song et al., “Medicare Fee Cuts and Cardiologist-Hospital Integration,” JAMA Internal Medicine 175, no. 7 (July 2015): 1229–31.
  10. Medicare Payment Advisory Commission (MedPAC), Report to Congress, “Physician and Other Health Professional Services,” Mar. 2017.
  11. “Implementing MACRA.”
  12. Medicare Access and CHIP Reauthorization Act of 2015, Public Law 114-10.
  13. Institute of Medicine, “Crossing the Quality Chasm: A New Health System for the 21st Century,” Mar. 2001.
  14. Chris Pope, “Medicare’s Single-Payer Experience,” National Affairs, no. 26 (Winter 2016): 2–20.
  15. Kathryn Toone, Natalie Burton, and David Muhlestein, “MACRA in 2017: Overview, Impact & Strategic Considerations of the Quality Payment Program,” Leavitt Partners, Mar. 2017.
  16. Ben Sasse, “House Should Reject Medicare Change,” Politico, Mar. 26, 2015.
  17. CMS, “Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician Focused Payment Models,” Final Rule with comment period, Federal Register 81, no. 214 (Nov. 4, 2016): 77008–831.
  18. CMS, “Medicare Program; CY 2018 Updates to the Quality Payment Program,” Proposed Rule, Federal Register 82, no. 125 (June 30, 2017): 30010–500.
  19. Tim Gronniger et al., “How Should the Trump Administration Handle Medicare’s New Bundled Payment Programs?” Health Affairs blog, Apr. 10, 2017.
  20. Toone, Burton, and Muhlestein, “MACRA in 2017.”
  21. CMS, “The Quality Payment Program.”
  22. MedPAC, Report to Congress, “Physician and Other Health Professional Services,” Mar. 2017.
  23. CMS, “The Merit-Based Incentive Payment System: MIPS Scoring Methodology Overview.”
  24. MedPAC, Report to Congress, “Medicare and the Health Care Delivery System,” June 2017.
  25. MedPAC, “Physician and Other Health Professional Services.”
  26. Eric T. Roberts, Alan M. Zaslavsky, and Michael McWilliams, “The Value-Based Payment Modifier: Program Outcomes and Implications for Disparities,” Annals of Internal Medicine 168, no. 4 (Nov. 28, 2017): 255-65.
  27. See the transcript of the MedPAC public meeting, Oct. 5, 2017, pp. 4, 9; Virgil Dickson, “MedPAC Urges Repealing MIPS,” Modern Healthcare, Oct. 5, 2017.
  28. Kate Bloniarz and David Glass, “Next Steps for the Merit-based Incentive Payment System (MIPS),” MedPAC public report, Oct. 5, 2017.
  29. See the letter from Glenn M. Hackbarth, chairman of MedPAC, to Marilyn Tavenner, administrator, Centers for Medicare & Medicaid Services, “RE: CMS List of Measures Under Consideration for December 1, 2014,” Jan. 5, 2015.
  30. See the transcript of the MedPAC public meeting, Oct. 5, 2017, p. 7.
  31. Niam Yaraghi, “MACRA Proposed Rule Creates More Problems than It Solves,” Health Affairs blog, Oct. 16, 2016.
  32. “MIPS Reporting Solutions,” Philips wellcentive; “MIPS Registry,” pMD.
  33. U.S. Government Accountability Office, “HHS Should Set Priorities and Comprehensively Plan Its Efforts to Better Align Health Quality Measures,” Report to Congressional Committees, GAO-17-5, Oct. 2016.
  34. Robert A. Berenson, “If You Can’t Measure Performance, Can You Improve It?” Journal of the American Medical Association 315, no. 7 (Feb. 16, 2016): 645–46.
  35. Yaraghi, “MACRA Proposed Rule.”
  36. J. Michael McWilliams, “MACRA: Big Fix or Big Problem?” Annals of Internal Medicine 167, no. 2 (July 18, 2017): 122–24.
  37. Roberts, Zaslavsky, and McWilliams, “The Value-Based Payment Modifier.”
  38. Lynn Bar, Tim Gronniger, and Tim Putnam, “CMS’s Big MACRA Surprise—Physicians Will Be Judged Based on Cost in 2018 MIPS Calculation,” Health Affairs blog, Nov. 22, 2017.
  39. Krista Teske, “Your Questions About the 2017 MACRA Final Rule—Answered,” Advisory Board Expert Insight, Jan. 31, 2017.
  40. Bloniarz and Glass, “Next Steps for the Merit-Based Incentive Payment System (MIPS).”
  41. Lawrence P. Casalino et al., “US Physician Practices Spend More than $15.4 Billion Annually to Report Quality Measures,” Health Affairs 35, no. 3 (Mar. 2016): 401–6.
  42. “Table 64: MIPS Proposed Rule Estimate Impact on Total Allowed Charges by Practice Size,” Federal Register 81, no. 89 (May 9, 2016): 28375.
  43. See the transcript of the Med PAC public meeting, Oct. 5, 2017.
  44. Kate Bloniarz and David Glass, “Approaches to MACRA implementation: Balancing MIPS and A-APMs,” MedPAC presentation, Jan. 12, 2017.
  45. Toone, Burton, and Muhlestein, “MACRA in 2017.”
  46. Tara O’Neill Hayes, “Primer: MACRA and Advanced Alternative Payment Models,” American Action Forum, Mar. 30, 2017.
  47. CMS, “Physicians and Health Care Providers Continue to Improve Quality of Care, Lower Costs,” Aug. 25, 2016.
  48. “MACRA: Disrupting the Health Care System at Every Level,” Deloitte Health Policy Brief, 2016.
  49. Maria Castellucci, “CMS Loses Money as Medicare ACOs Remain Risk-Averse,” Modern Healthcare, Nov. 3, 2017.
  50. Ashish Jha, “ACO Winners and Losers: A Quick Take,” An Ounce of Evidence blog, Aug. 30, 2016.
  51. Kristen Barlow, “3 Mandatory Bundles Will Likely Be Canceled, a 4th Scaled Back: What You Need to Know,” Advisory Board at the Helm, Aug. 16, 2017.
  52. François de Brantes, “Medicare’s Bundled Payment Programs Suffer from Fatal Flaws, but There Is a Logical Alternative,” Health Affairs blog, May 9, 2017.
  53. CMS, “Medicare Fee-for-Service 2016 Improper Payments Report.”
  54. J. Michael McWilliams et al., “Outpatient Care Patterns and Organizational Accountability in Medicare,” JAMA Internal Medicine 174, no. 6 (June 2014): 938–45.
  55. Yena Son and Daniel Kuzmanovich, “Concerned About MACRA? You’re Not the Only One,” Advisory Board Practice Notes, Dec. 8, 2016.
  56. John O’Shea, “Salvaging MACRA Implementation Through Medicare Advantage,” Health Affairs blog, Oct. 16, 2017.
  57. Idem, “As MACRA Implementation Proceeds, Changes Are Needed,” Health Affairs blog, Apr. 21, 2017.
  58. De Brantes, “Medicare’s Bundled Payment Programs Suffer from Fatal Flaws.”
  59. “Physicians Wary of MACRA’s Potential to Hasten the Demise of Independent Practices, per Black Book Survey,” PR Newswire, June 13, 2016.
  60. “2016 Survey of America’s Physicians,” Physicians Foundation, Sept. 21, 2016.
  61. Molly Gamble, “Sebelius: PPACA, Antitrust Law in ‘Constant Tension,’ ” Becker’s Hospital Review, Apr. 9, 2013.
  62. Scott Gottlieb, “House Republicans Should Break the Obamacare Mold on Doctor Pay,” Forbes, Mar. 19, 2015.
  63. Hannah T. Neprash, Michael E. Chernew, and J. Michael McWilliams, “Little Evidence Exists to Support the Expectation That Providers Would Consolidate to Enter New Payment Models,” Health Affairs 36, no. 22 (Feb. 2017): 346-54.
  64. “CMS to Count Participation in MA Towards Alternative Pay Model Calculations,” Inside Health Policy, Nov. 8, 2017.
  65. Katherine Baicker, Michael E. Chernew, and Jacob E. Robbins, “The Spillover Effects of Medicare Managed Care: Medicare Advantage and Hospital Utilization,” Journal of Health Economics 32, no. 6 (Dec. 2013): 1289–1300; Katherine Baicker and Jacob A. Robbins, “Medicare Payments and System-Level Health-Care Use: The Spillover Effects of Medicare Managed Care,” American Journal of Health Economics 1, no. 4 (Fall 2015): 399–431.

How Your Child’s Lemonade Stand Could Land You in Jail

Originally published at The Daily Signal by Jonathan Zalewski | 7/27/18

Have your kids ever asked you if they could set up a lemonade stand in the neighborhood? If so, don’t be so quick to give permission—it could be conspiracy to commit a crime.

Across America, parents and children are learning that the hard way. From Louisiana to Colorado, families set up makeshift lemonade stands, hoping to teach children the virtues of capitalism, make a few bucks, or raise funds for charity. Then they find themselves in trouble with the law if they do not first obtain a government license to conduct their “food-vending business.”

These stories reflect the way our society has become overcriminalized through the overuse and abuse of the criminal law to fix every problem and punish every mistake.

They also reveal how crony capitalism and government bureaucracy are destroying free markets, innovation, and entrepreneurialism in our local neighborhoods.

In Denver, for example, the city’s laws and regulations require any food vendor operating a vending cart in or within 300 feet of a Denver park to obtain a temporary food-vending permit before selling any food or non-alcoholic beverage to the public.

Food vendors who do not obtain a permit or violate any other provision of Denver law governing the operation of food-vending carts face up to a $999 fine, 300 days in jail, or both, for each violation of the law.

These laws and regulations even apply to lemonade stands—which brings us to the story of Jennifer Knowles and her three young sons.

Over Memorial Day weekend this year, Knowles helped her sons set up a lemonade stand across the street, within 300 feet, from an arts festival in a Denver park.

But, according to police, vendors from the art festival called and complained that the boys were undercutting the vendors’ prices and lacked a permit. Since Knowles and her boys did not have a permit to operate the stand within 300 feet of the park, police shut it down.

Neither Knowles nor her sons were criminally charged, but the boys were embarrassed and scared when the police made them close the stand. One began to cry, and another said, “I put my hat over my face. I didn’t want to see anyone.”

Clearly, Knowles and her family meant no harm to either the city or the festival vendors. In fact, they set up the lemonade stand to raise money for a charity that helps children in poverty.

Perhaps the old adage is true: No good deed goes unpunished.

If so, we need to ask ourselves what we are teaching our children about civic virtues.

The Denver laws and regulations that got Knowles and her sons into trouble present a classic case of overcriminalization. A perfectly innocent economic activity—selling lemonade to people in the neighborhood to raise money to help others in need—becomes the basis for a criminal law and punishment, including a potential jail sentence.

When the police showed up to Knowles’ house that day, they indeed could have arrested her for allowing her sons to run the stand without a permit.

The thought of that should concern every American.

Some may say obtaining a food-vending license serves a legitimate public interest by protecting consumers from foodborne illnesses. But is that what happened over Memorial Day weekend in Denver?

Police said they closed the Knowles’ lemonade stand because vendors were complaining the boys were undercutting their prices. It had nothing to do with whether Knowles and her sons were operating an unsanitary lemonade stand.

Food-vending licenses, like other types of occupational licenses, offer individuals and businesses protection from competition, which destroys free markets and innovation. Licensing laws incentivize individuals and businesses, such as food vendors, to seek and lobby for government intervention—at little or no cost—to obtain economic benefits at the expense of others.

The story of Knowles and her three sons illustrates how government licensing promotes crony capitalism, which—in addition to overcriminalization—creates economic barriers for people who are often economically or politically disadvantaged.

Their story also illustrates how children can become fearful of the law and uninterested in entrepreneurship and philanthropy.

But Knowles and her sons are not letting these barriers stop them.

Since their lemonade stand was shut down, Knowles and her sons have continued their philanthropic efforts and partnered with a local Chick-fil-A store to sell lemonade in the store for a day to raise additional money for charity.

Knowles is also working with the city of Denver to devise a solution that would allow young children to operate a lemonade stand without committing a crime.

For Knowles and her sons, when life gives them lemons, they truly do make lemonade.


Pretextual Stops and the General Warrant: Stopping the March of the Whren Doctrine

Originally published at Cato Institute by Jay Schweikert | April 25, 2018

Cases: Randy Johnson v. US, Whren v. US

The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Such broad discretion enabled abusive, selective enforcement, and the colonists’ contempt for those arbitrary practices was a major cause for the Revolutionary War itself. But 227 years after ratification of the Fourth Amendment, we are tragically approaching a stealth resurrection of the general warrant, in the form of pretextual stops. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that the actual intent of law enforcement officers in making a stop—even unlawful intent, like racial discrimination—is irrelevant to the legality of a traffic stop under the Fourth Amendment, so long as there is probable cause to believe that some traffic violation occurred. The practical effect of this decision has been to give police officers nearly unfettered discretion to stop any person they choose at any time. After all, no one can actually operate a motor vehicle for an extended period of time without running afoul of some traffic law. Especially when combined with other areas of Fourth Amendment law that create expansive exceptions to the warrant requirement, Whren itself has already been described as the “twentieth‐​century version of the general warrant.” But if that were not bad enough, the Seventh Circuit, in an en banc decision, recently extended the Whren doctrine even to parking violations—and effectively, to any and all fine‐​only offenses, no matter how trivial. Especially in light of the rampant state of overcriminalization in our country today, that move represents an endorsement of the general warrant in all but name. We have so many criminal laws today that we cannot even count them all, and states routinely regulate a huge swath of generally harmless conduct that regular citizens engage in every day. If violation of any regulation whatsoever is sufficient to justify a police stop (regardless of whether that regulation was actually the motive behind the stop), then police can, in effect, stop anyone they want to. The Cato Institute has therefore filed an amicus brief urging the Supreme Court to grant cert in this case, reverse the Seventh Circuit, and reconsider the Whren doctrine entirely.


Making Criminals Out of All Americans

Originally published at Cato Institute by Jay Schweikert | April 25, 2018

Cases: Black v. US, Weyhrauch v. US

The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Such broad discretion enabled abusive, selective enforcement, and the colonists’ contempt for those arbitrary practices was a major cause for the Revolutionary War itself. But 227 years after ratification of the Fourth Amendment, we are tragically approaching a stealth resurrection of the general warrant, in the form of pretextual stops. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that the actual intent of law enforcement officers in making a stop—even unlawful intent, like racial discrimination—is irrelevant to the legality of a traffic stop under the Fourth Amendment, so long as there is probable cause to believe that some traffic violation occurred. The practical effect of this decision has been to give police officers nearly unfettered discretion to stop any person they choose at any time. After all, no one can actually operate a motor vehicle for an extended period of time without running afoul of some traffic law. Especially when combined with other areas of Fourth Amendment law that create expansive exceptions to the warrant requirement, Whren itself has already been described as the “twentieth‐​century version of the general warrant.” But if that were not bad enough, the Seventh Circuit, in an en banc decision, recently extended the Whren doctrine even to parking violations—and effectively, to any and all fine‐​only offenses, no matter how trivial. Especially in light of the rampant state of overcriminalization in our country today, that move represents an endorsement of the general warrant in all but name. We have so many criminal laws today that we cannot even count them all, and states routinely regulate a huge swath of generally harmless conduct that regular citizens engage in every day. If violation of any regulation whatsoever is sufficient to justify a police stop (regardless of whether that regulation was actually the motive behind the stop), then police can, in effect, stop anyone they want to. The Cato Institute has therefore filed an amicus brief urging the Supreme Court to grant cert in this case, reverse the Seventh Circuit, and reconsider the Whren doctrine entirely.


Justice Gorsuch on Overcriminalization and Arbitrary Prosecution

Originally published at Cato Institute by Jay Schweikert | April 17, 2018

“Vague laws invite arbitrary power.”

That’s the opening line and general theme of Justice Neil Gorsuch’s concurring opinion in Sessions v. Dimaya, announced today. In this case, Justice Gorsuch joined the Court’s four “liberals” in a 5-4 decision holding unconstitutional a provision of the Immigration and Nationality Act, which renders deportable any alien convicted of an “aggravated felony.” This statutory phrase is defined to include a “crime of violence,” which itself is defined to include both crimes where use or threat of force is an element, as well as”any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” It was this last provision — the “residual clause” of the statute — that was at issue in the case. The majority held that this abstract definition was “impermissibly vague,” and thus a violation of the Fifth Amendment’s Due Process Clause.

In his separate opinion, Justice Gorsuch gave a detailed analysis of the history and legal foundations of the void-for-vagueness doctrine (largely in response to Justice Thomas, who questioned the propriety of this constitutional doctrine both here and in a similar prior case, Johnson v. United States). His concurrence argues that courts must review and strike down unconstitutionally vague statutes, not just to ensure fair notice to potential defendants, but also to enforce the separation of powers between the branches of government:

Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.”

Justice Gorsuch also made clear that subjecting vague statutes to meaningful judicial review is equally important in civil cases, where penalties are often at least as harsh as they are under the criminal law:

[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies.

This analysis obviously has implications reaching far beyond the immigration context, and is encouraging for those concerned with overcriminalization and arbitrary law enforcement in general. Justice Gorsuch correctly notes that “[p]erhaps the most basic of due process’s customary protections is the demand of fair notice.” But today, we have so many criminal laws that it’s impossible to even count them all: at the federal level alone, we estimate that there are about 4500 criminal statutes, and around 300,000 regulatory crimes — many of which do not involve inherently wrongful conduct and lack any “mens rea” requirement (that is, you can be found guilty even if you had no idea you were acting unlawfully). Who could possibly claim that such a system gives the ordinary citizen “fair notice” of the conduct for which they can be punished?

This degree of overcriminalization also places enormous unchecked power in the hands of law enforcement and prosecutors. As Justice Gorsuch recognized, vague and expansive laws “invite the exercise of arbitrary power . . . by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” The staggering breadth of substantive criminalization today means that almost everyone is a criminal, whether they know it or not. If police and prosecutors are inclined to go after you, there’s almost certainly something they can find — whether or not that conduct is genuinely wrongful or harmful.

On the whole, Justice Gorsuch’s opinion in this case is an encouraging sign that he’s aware of and attuned to this set of concerns. Hopefully the newest member of the Court will continue to apply this level of exacting review to vague and arbitrary statutes across the board.


Protecting the Innocent in an Era of Overcriminalization

Originally posted at Charles Koch Institute

This panel highlighted the issue of overcriminalization—the use of criminal rather than civil or administrative law to punish behavior that historically would not have been punished criminally. The trend toward overcriminalization is yielding dangerous consequences for the rule of law.

Louisiana State University professor emeritus of law John Baker began by noting the troubling fact that we don’t actually know the number of crimes defined within our legal system. Baker stressed that though a crime requires both an actus reus (“guilty act”) and a mens rea (“guilty mind”), too many modern criminal laws do not include an intent requirement, meaning individuals can be prosecuted for unknowingly breaking the law.

Federal appellate attorney Sidney Powell mentioned profound problems with the level of discretion and, hence, power that is given to prosecutors under the U.S. criminal justice system, which has so many criminal penalties attached to what should be civil offenses.

James Copland, director of the Manhattan Institute’s Center for Legal Policy, highlighted studies from a range of states that show overcriminalization is not just a federal problem, for numerous state regulations contain criminal sanctions without any intent requirements. He argued that ultimately the burden of these state sanctions tends to fall on small-business owners and individuals.

University of Notre Dame law professor Stephen Smith noted examples of how abusive prosecution is far too common and emphasized the need for courts to ensure that prosecutors act only within the bounds of their authority under criminal statutes. He echoed Copland’s concerns about the effect of overcriminalization on poor individuals and small-business owners in particular.

Shana-Tara O’Toole, director of the National Association of Criminal Defense Lawyers’ White Collar Crime Policy Unit, closed the discussion by stressing that in order to maintain the rule of law, the reform community needs to work together to overcome the challenges identified by the panel.

To learn more about how you can get involved, please visit the Charles Koch Foundation’s Request for Proposals page.


President Commutes Sentence of Business Owner Victimized by Overcriminalization

Published at Washington Legal Foundation | December 21, 2017

On Wednesday, December 20, President Trump issued a statement commuting the sentence of Sholom Rubashkin, the former CEO of a kosher meatpacking plant. He had been convicted of financial fraud in 2009 and sentenced to 27 years in prison—a virtual life sentence for the then-51-year old Rubashkin. He had served 8 years of that sentence. Washington Legal Foundation actively participated in the courtroom and public resistance to the excessive sentence through amicus briefs and published commentaries.

With the pro bono support of Professor Douglas Berman, the nation’s leading expert on federal sentencing law, WLF in 2011 urged the U.S. Court of Appeals for the Eighth Circuit to overturn the sentence. Joining WLF on the amicus brief were 18 noted law professors, practitioners, and former federal judges and prosecutors.

WLF argued that the trial judge ignored the U.S. Supreme Court’s repeated admonition not to reflexively presume reasonable any sentence within the range set out by the U.S. Sentencing Guidelines. We also argued that the judge did not fully consider the circumstances surrounding Mr. Rubashkin’s actions, his lack of a criminal record, and his personal history.

Prosecutors not only refused to consent to WLF’s brief, they filed a “resistance” with the Eighth Circuit claiming that under that circuit’s amicus brief policy, the judges could not accept any non-party briefs. After receiving significant criticism for the tactic, prosecutors withdrew their objection.

After the appeals court upheld Mr. Rubashkin’s sentence, WLF and the 18 aforementioned experts supported his petition for certiorari to the U.S. Supreme Court, with Professor Berman as our Counsel of Record. The Court denied review on October 1, 2012.

The Des Moines Register has coverage of the commutation here.


Criminalization Without Representation

Originally published at National Review by Rafael A Mangual | October 31, 2017

Regulators shouldn’t be able to create crimes.

In early October, Senate Republicans introduced three bills to reform the federal approach to criminal justice. Earlier versions of these bills had formed the core of a legislative package that stalled under President Obama. While these measures are worthy of serious consideration, they miss a key problem in need of reform: “criminalization without representation.”  TOP ARTICLES2/5READ MOREWarren Rips Bloomberg for AllegedlyTelling Pregnant Employee to ‘Kill’ It

Anyone who paid attention in fifth-grade social studies would assume that Congress, which makes the law, knows how many crimes are on the books. But that assumption is mistaken. In fact, one of the new bills, introduced by Senator Chuck Grassley (R., Iowa), would require the attorney general to compile a list of all federal criminal offenses.

This highlights, but does not address, a fundamental defect in our justice system: Congress doesn’t know how many federal crimes there are because Congress didn’t create most of them; unelected regulators did. Rules made this way should not serve as the basis for anyone’s imprisonment. At most, those who break them should be subject to civil enforcement measures, such as fines, unless and until Congress signs off on criminalizing the conduct at issue.

According to the best estimates of scholars who have studied overcriminalization, Congress is directly responsible for approximately 5,000 of the over 300,000 criminally enforceable federal rules and regulations. Nearly 99 percent of crimes on the books were never voted on by anyone accountable to the public.

How did this happen? As the federal government inserts itself into more areas of American life — particularly since the New Deal era — it has created a growing network of bureaucracies tasked with making rules that govern everything from agriculture to corporate bookkeeping. According to the Federal Office of Personnel Management, the number of civilian employees in the executive branch has tripled since 1940.

Thanks in part to the development of legal doctrines that require courts to defer to a federal agency’s interpretations of the scope of its own authority, the federal bureaucracy has become dominant in making the rules by which we live. For every law Congress passes, federal agencies create 18 regulations, according to the Competitive Enterprise Institute’s “Unconstitutionality Index.” Many of these rules, thanks to overly broad grants of authority by Congress, have criminal teeth.

The CrimeADay Twitter account, which tracks federal crimes, provides some examples of the conduct eligible for the severe sanction of federal imprisonment. Among them are prohibitions on selling “spaghetti sauce with meat” that is less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle, and taking a used “farm tool” from New York into New Jersey. There may very well be a good reason not to transport used farm tools from New York into other states, but should it be a crime?

Bureaucrats in administrative agencies create crimes only under congressional grants of authority. Far too often, Congress writes bills with regulatory “catch-all” provisions that deem criminal any violation of any regulation created pursuant to the statute. For example, a federal regulation promulgated by the Department of Homeland Security prohibits bringing a bicycle into a building of the National Institutes of Health. That regulation is authorized in Section 1315(c) of Title 40 of the U.S. Code, which criminalizes any “regulation prescribed” pursuant to that provision of law. That is, the violation of any regulation, no matter how trivial, authorized by that particular statute can make you a federal criminal. The U.S. Code is littered with such clauses.

We can be imprisoned for breaking rules made not by our elected representatives pursuant to a vote, but by faceless administrators.

Not only has this practice resulted in an absurdly bloated body of criminal law, it has a turned a core feature of our constitutional republic on its head. Our founders went to war in part because they were subjected to taxes they had no say in. Yet today we can be imprisoned for breaking rules made not by our elected representatives pursuant to a vote, but by faceless administrators inside the drab office buildings that house our federal agencies — people whose names never appeared on a ballot.

The vast majority of criminally enforceable rules were never presented to a congressional committee or debated on the floor of either legislative chamber. They did not survive a vote; nor were they presented to the president for a ratifying signature. Therefore, they should not form the basis for anyone’s imprisonment.

Congress can address the detachment of criminal lawmaking from the political process by requiring congressional approval of regulations as a prerequisite for criminal enforcement, restricting to the realm of civil enforcement rules that are not explicitly signed off on. If we are to achieve Abraham Lincoln’s vision of a representative government that is “of the people, by the people, for the people,” someone in Congress should consider proposing a plan to bring criminal lawmaking back into the purview of the representative branch of our government, where it belongs.

RAFAEL A. MANGUAL is a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research, and a contributing editor of City Journal.


New Poll Suggests Surprising Support for Criminal Justice Reforms Among Trump Voters

Originally published at Charles Koch Institute | April 26, 2017

Arlington, Va., April 26, 2017—Ahead of President Donald Trump’s 100th day in office, the Charles Koch Institute (CKI) today released a poll surveying 1,200 American voters who participated in the 2016 presidential election about their views on criminal justice issues such as civil asset forfeiture, overcriminalization, and mandatory minimum sentencing.

The results, which represent responses from a broad range of Americans—including voters who identify as liberals, moderates, and conservatives—suggest significant support for criminal justice reform. Notably, this support even comes from Trump voters: When asked whether criminal justice reform is a priority for the country, 81 percent of Trump voters described the issue as either “very important” (34 percent) or “somewhat important” (47 percent). Trump voters were also more likely to have experience with the criminal justice system, as 54 percent of them reported knowing someone who is or has been incarcerated.

When asked about civil asset forfeiture, 59 percent of Trump voters either “strongly disagreed” (28 percent) or “disagreed” (31 percent) that police should have the right to seize private assets of a suspect even if that individual is never prosecuted.

Furthermore, when asked if judges should have more freedom to assign forms of punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” (26 percent) or “agreed” (37 percent).

“There appears to be an appetite among conservatives to get ‘right-on-crime,’” said Vikrant Reddy, a senior research fellow with CKI. “Conservatives have been observing the criminal justice system, and they have opinions on how to make it better. In short, they want reforms that prioritize public safety, respect individual rights, and advance human dignity.”

Download the full poll results

A leading web-based panel research firm fielded the survey of 1,200 registered voters who participated in the 2016 presidential election. Results are un-weighted. Respondents were sorted by whether they considered themselves liberal, moderate, or conservative on both economic and social issues; whether they lived in rural, suburban, or urban areas; and whether they personally knew someone who is or has been incarcerated.

The Charles Koch Institute

The Charles Koch Institute is a 501(c)3 educational organization that aims to advance an understanding of how to help people improve their lives through research, education, and discussion. CKI also works to foster a national conversation on critical issues such as criminal justice reform that have a strong impact on the advancement of societal well-being.