Homemade Ceviche Case Exemplifies Need to Address Overcriminalization

Originally published at The Orange County Register by James R. Copland and Rafael A. Mangual | 11/17/16
Mariza Ruelas, a single mother in Stockton, California, is facing possible jail time for offering to sell her homemade ceviche, a Latin American seafood dish, through a Facebook group in which users swap recipes and occasionally swap meals. A man took her up on her offer, but unbeknownst to Ms. Ruelas, he was a government agent working on an undercover sting operation targeting those who sell food without a license.
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Thank You FedEx, For Standing Up to the Feds

Originally published at Manhattan Institute By James Copland & Rafael Mangual | 6/21/16
On Friday, June 17, federal prosecutors made the unusual decision to suddenly drop a drug prosecution after a week of trial, some two years after indictment. The judge in the case, Charles R. Breyer, had expressed skepticism, calling it a “novel prosecution.” And indeed it was: the defendant in the trial was not an individual but the delivery company FedEx-though the government invoked some of the same statutes it’s used to go after the Mexican kingpin “El Chapo.”
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Manhattan Report: Justice Out of the Shadows

Originally published at Manhattan Institute by James R. Copland and Rafael A. Mangual | 6/15/16
Each year, the Department of Justice (DOJ) and other federal agencies enter into scores of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) with businesses: DPAs involve cases in which criminal charges have been filed, and the DOJ asserts that judicial oversight is limited to ensuring their compliance with the Speedy Trial Act; NPAs are entered into without the filing of any formal criminal charges, and no judge ever reviews their contents. Faced with the threat of criminal charges, most companies agree to settle because the collateral consequences of a conviction (or often, even an indictment) are so harsh—in many cases, they amount to a corporate death sentence.
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Enforcement Maze: Overcriminalizing American Enterprise Conference

Originally published at NACDL | May 20, 2018
On May 26, 2016, NACDL co-hosted a free law and policy symposium with the U.S. Chamber of Commerce’s Institute for Legal Reform entitled The Enforcement Maze: Over-Criminalizing American Enterprise. The day-long symposium featured key leaders from industry, academy, law and policy across the political spectrum. Continue Reading

Overcriminalization at the Airport

Originally published at Cato Institute by Jonathan Blanks | April 13, 2016
People who fly a lot will invariably have a bad experience at the airport, sooner or later. Delays, cancellations, huge lines, and overbooked flights can wear on people, and sometimes individuals take their frustrations out on an airline employee. And, once in a while, the person goes too far and crosses the line into assaulting that employee. Continue Reading

Heritage Report: The FAA Drone Registry: A Two-Month Crash Course in How to Overcriminalize Innovation

Originally published at The Heritage Foundation by Jason Snead and John-Michael Seibler | 3/8/16
Two months: That is all the time an executive branch agency needs to create a crime. With passage of the 2012 FAA Modernization and Reform Act, Congress explicitly told the Federal Aviation Administration to leave recreational drones alone, but the FAA has charged ahead anyway. In just two months, with no input from Congress or the public, unelected and unaccountable bureaucrats have devised a way to apply the pre-existing aircraft registration penalties to create a federal felony offense that can result in up to three years in prison and up to $277,500 in fines for failing to register as the owner of a qualifying drone—essentially a toy. Continue Reading

The Wrongs of American Justice

Originally Published at National Review by Conrad Black | February 20 2016
Two relatively recent articles in respected publications have piercingly reminded me of what a rotting carcass much of the American legal system has become. The articles were a piece in The Weekly Standard of October 26 by retired attorney Paul Mirengoff and Georgetown law professor and former prosecutor William Otis, and a fawning profile of Judge Richard Posner by Lincoln Caplan (the Truman Capote visiting lecturer at Yale Law School, if such a position can be imagined) in the current issue of Harvard Magazine. TOP ARTICLES2/5READ MOREWarren Rips Bloomberg for AllegedlyTelling Pregnant Employee to ‘Kill’ It Continue Reading

As 2016 Begins to Close, Where Is Criminal Justice Reform Heading?

Originally published at Charles Koch Institute
As criminal justice reforms become increasingly common at the state level, the Charles Koch Institute remains committed to ensuring that the best ideas are shared. Though we may have arrived at our current criminal justice system through good intentions, far too many of its features run counter to the basic principles of a free society. And though the reforms seen in 2016 have been promising, there’s still much work to be done. Continue Reading

Not Everything That’s Unseemly Should Be Illegal

Originally published at Cato Institute by Ilya Shapiro and Randal John Meyer
The explosion in criminal statutes is only a part of the problem of overcriminalization. The other side of the coin is prosecutorial discretion: a prosecutor’s official authority to charge certain offenses and not to charge others. The growth of criminal codes, state and federal, gives prosecutors more tools, which allows them to both “stack” charges and expand the reach of criminal code provisions to new, non-criminal facts. Continue Reading

EPA Criminal Enforcement Policies

Originally published at Washington Legal Foundation by Barry M. Hartman | November 20, 2015
The WLF Timeline notes that in 2005, the Environmental Protection Agency (EPA) started co-locating its civil and criminal offices; it turns out this was just the tip of the iceberg. There has been a long pattern of convergence of criminal and civil environmental enforcement at EPA, jointly with the Department of Justice’s (DOJ) Environmental Division. Continue Reading

Wellcare Case Provides Example of Overcriminalization in Action

Originally published at Cato Institute by Adam Bates | November 19, 2015
Overcriminalization is not a myth. Labyrinthine regulations often produce absurd outcomes, including prison sentences for individuals who do everything in their power, including consulting multiple attorneys, to comply with the law before acting. Continue Reading

Deferred Prosecution Agreements; Yates Memo

Originally published at Washington Legal Foundation by Joe D. Whitley | November 18, 2015
Over the past 15 years, Deferred-Prosecution Agreements (DPA) and Non-Prosecution Agreements (NPA) have become a vehicle of choice for resolving complex criminal investigations. This progression is chronicled in the Washington Legal Foundation’s (WLF) “The Federal Erosion of Business Civil Liberties” Timeline. Continue Reading

DOJ Crime Prosecution Policies

Originally published at Washington Legal Foundation by Michael Volkov on November 17, 2015
Over the last thirty years, the U. S. Department of Justice has dramatically expanded criminal prosecutions of corporations and individuals, relying on a steady litany of so-called criminal-prosecution policies. Underlying each of these policies are two significant purposes: (1) to replace prior civil and regulatory enforcement with “new” criminal prosecution tools and (2) to provide criminal prosecutors with ever-increasing leverage over companies and individuals to extract criminal fines and pleas. Continue Reading

Mens Rea and Corporate Officer Doctrine

Originally published at Washington Legal Foundation by Matthew G. Kaiser | November 16, 2015
To commit a crime, normally you have to have met two requirements. First, you have to have done something bad. Second, you have to have done the bad thing with a bad intent. Take mortgage fraud. If you write on your mortgage application that you earn $1,000,000 a year, but you only earn $100,000, you’ve committed mortgage fraud if that’s what you intended to submit and you knew it was false. Continue Reading

Regulatory Crimes

Originally published at Washington Legal Foundation by David Debold | 11/13/15
David Debold, Partner, Gibson, Dunn & Crutcher LLP Editor’s Note: This is the first in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. Two developments identified in WLF’s helpful Timeline—the proliferation of new criminal laws affecting businesses, and the evolution of federal sentencing law over time—would be topics of significant interest if either had unfolded without the other. The combination of the two, however, has posed a serious threat to the civil liberties of the American business community. Continue Reading

Hatch is Right on Criminal Justice Reform

Originally published at Manhattan Institute by James R. Copland and Rafael A. Mangual | 10/12/15
On Oct. 1, a bipartisan group of senators including Charles E. Grassley (R-Iowa), Dick Durbin(D-Ill.), and Cory Booker (D-N.J.), announced a plan to reduce mandatory criminal sentences under federal law for nonviolent offenders and help former prisoners reintegrate into society. Such an effort is overdue, but insufficient to fully remedy the overreach of federal criminal law. To do so, lawmakers must also bring attention to what we and other reformers have called “overcriminalization” in federal code. Continue Reading

Excerpts from Sen. Hatch Speech on Mens Rea Reform

Originally published at National Review by Jonathan Keim | 9/21/15
As criminal justice reform has built momentum in recent months, it has lost some of its focus on overcriminalization issues like mens rea reform and overbreadth. This afternoon Senator Orrin Hatch refocused the coalition on these issues, bringing attention to proposed legislation that would rein in the overly expansive federal criminal code by imposing a default mens rea on all federal crimes. Continue Reading

Heritage Report: The Pressing Need for Mens Rea Reform

Originally published at The Heritage Foundation by John G. Malcolm | 9/1/2015
A number of criminal justice reform proposals have been introduced and are being actively discussed and debated on Capitol Hill these days. Most[1] (but not all[2]) of these proposals involve reforming criminal sentencing practices and prison reform. Notably absent, at least so far, have been any proposals to address mens rea (Latin for a “guilty mind”) reform. Continue Reading

United States v. Quality Egg

Originally published at Cato Institute by Ilya Shapiro and Randal John Meyer | July 30, 2015
It isn’t every day that a person can go to his or her job, work, not participate in any criminal activity, and still get a prison sentence. At least, that used to be the case: the overcriminalization of regulatory violations has unfortunately led to the circumstance that corporate managers now face criminal—not just civil—liability for their business operations’ administrative offenses. Continue Reading

Too Many Ordinary People Caught in Web of Injustice

Originally published at Boston Herald by Jordan Richardson | 6/8/15
Overcriminalization, the overuse or misuse of criminal law to address societal problems, is a troubling phenomenon that touches every segment of society. It manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing and criminal sanctions for simple mistakes or accidents. Continue Reading

Elonis v. United States and the Mens Rea Debate

Originally published at National Review by Jonathan Keim | June 3, 2015
On Monday the Supreme Court did something interesting in Elonis v. United States, a case about the interstate threat statute and its application to Facebook status messages. Although widely viewed as a case with great significance for the First Amendment’s application to social networking, the Court sidestepped the constitutional question and dove straight for the overcriminalization issue: default mens rea.
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Heritage Report: Shining a Light on Over-Criminalization

Originally published at The Heritage Foundation by Jordan Richardson | June 1, 2015
Overcriminalization—the overuse or misuse of the criminal law to address societal problems—is a troubling phenomenon that touches every segment of society.[1] It manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and criminal sanctions for simple mistakes or accidents under a theory of strict liability. Continue Reading

When District Attorneys Attack

Originally published at National Review by Kevin D. Williamson | 5/31/15
The GOP should turn its attention to prosecutorial misconduct. As the old Vulcan proverb has it, “Only Nixon can go to China.” And only Nixon’s political heirs can fix the persistent — and terrifying — problems that continue to plague this country’s law-enforcement agencies and prosecutors’ offices. Continue Reading