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… Continue Reading

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… Continue Reading

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. Continue Reading

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… Continue Reading

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.
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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.

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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 Forbes.com on the disquieting trend toward criminalizing “normal” American enterprise stirred more than a few pointed comments. The most common response? “Have I got a story for you!” Continue Reading

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.
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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.

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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. Continue Reading

Justice Gorsuch on Overcriminalization and Arbitrary Prosecution

Originally published at Cato Institute by Jay Schweikert | April 17, 2018
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.” Continue Reading

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. Continue Reading

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 Continue Reading

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. Continue Reading