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

Too Many Laws Means Too Many Criminals

Originally published at National Review by Timothy Head & Matt Kibbe| 5/21/15
When three missing fish can land someone in jail on felony charges, reform is needed. ‘There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” retired Louisiana State University law professor John Baker told the Wall Street Journal in July 2011. “That is not an exaggeration.” Continue Reading

The Culture of Criminalization

Originally published at Cato Institute by Gene Healy
On April 22, a House Judiciary subcommittee approved a bill that would send parents to jail for at least three years if they learn of drug activity near their children and fail to report it to authorities within 24 hours. Continue Reading

Baltimore’s Problem, and America’s

Originally published at National Review by Conrad Black | May 6, 2015
The criminal-justice system is a disaster. It would be ungracious of me not to acknowledge with gratitude the column on Sunday of my old friend Fareed Zakaria, citing several sources, including me, as he recounts the almost unmitigated moral bankruptcy of the U.S. criminal-justice system. Continue Reading

Politicized Prosecution Run Amok in Wisconsin

Originally published at National Review by Rich Lowry | 4/21/15
The knock on the door in the dead of night is the stuff of Darkness at Noon, and of the state of Wisconsin. To the question of whether armed police can storm your house and take away your personal effects and tell you to shut up about it, based simply on your political advocacy, Wisconsin answered for years, “Why, yes, they can — now please, shut up about it.” Continue Reading

Atlanta’s Cheating Teachers Are Not Mobsters

Originally published at USA Today by Van Jones and Mark Holden | April 20, 2015
Last Tuesday, eight Atlanta Public Schools employees were sentenced to prison in one of the largest school cheating scandals in American history. But you wouldn’t know they were cheaters based on how they were treated in court. The educators were convicted of racketeering — a felony typically reserved for mob bosses, drug kingpins and terrorists. Continue Reading

“Overcriminalization Week” at SCOTUS

Originally published at National Review by Jonathan Keim | 4/19/15
I hereby declare this to be “Overcriminalization Week” at the Supreme Court. Every one of the cases scheduled for argument has some relationship to several issues in the overcriminalization debate I pointed out a couple weeks ago. Continue Reading

America Desperately Needs to Fix Its Overcriminalization Problem

Originally published at the National Review by George Will | April 9, 2015
The hyper-proliferation of criminal statutes has put too much power in the hands of prosecutors. What began as a trickle has become a stream that could become a cleansing torrent. Criticisms of the overcriminalization of American life might catalyze an appreciation of the toll the administrative state is taking on the criminal-justice system, and liberty generally. Continue Reading

The Overcriminalization Debate: A Primer

Originally published at National Review by Jonathan Keim, Skilling v. US, Yates v. US| April 6, 2015
Second to military force, criminal law is the government’s most dangerous weapon. Recognizing its potential for misuse, the Western legal tradition has developed a wide variety of legal barriers to ensure that the punishments and stigmas of “criminal” are applied only to the people that deserve them. Continue Reading

Goodlatte on Overcriminalization

Originally published at Cato Institute by Tim Lynch | February 13, 2015
The new chairman of the House Judiciary Committee, Bob Goodlatte (R-Va), discusses the problem of overcriminalization with Pat Robertson. Continue Reading

Heritage Report: The Perils of Overcriminalization

Originally published at The Heritage Foundation by Paul Larkin Jr. and Michael Mukasey | February 12, 2015
What has happened to federal criminal law in recent decades? Several former senior Department of Justice officials have expressed their concern with the path we have taken,[1] along with the American Bar Association,[2] numerous members of the academy,[3] journalists,[4] and other organizations like The Heritage Foundation.[5] We agree with their considered opinion that overcriminalization is a serious problem and needs to be remedied before it further worsens the plight of the people tripped up by it and further injures the public interest Continue Reading

Too Many Laws, Too Many Costs

Originally published by Cato Institute by David Boaz | February 2, 2015
As 2014 drew to a close, the mainstream media were full of laments about the “least productive Congress.” Or more precisely that the just‐​concluded 113th Congress was the secondleast productive Congress ever (since the mid‐​1940s when these tallies began), second only to the 2011-12 112th Congress. Continue Reading

Does Mens Rea Reform Provide Cover for Executives?

Originally published at National Review by Lawrence Lewis | 12/1/15
Yes, says Deputy Attorney General Sally Yates, an Obama political appointee in the Department of Justice, who last week took aim at the House Judiciary Committee’s bipartisan criminal justice reform efforts. She was specifically targeting the House mens rea reform bill, which would ensure that to be convicted of a federal crime, a defendant must have a minimal level of criminal intent. Here’s what Yates said, as quoted by NPR: Continue Reading

Eleventh Circuit Has Opportunity in Clay to Reshape Criminal Intent Prosecutions

Originally published at Washington Legal Foundation by Matthew G. Kaiser | 10/1/15
On Friday, October 2, the U.S. Court of Appeals for the Eleventh Circuit will hear oral arguments in a closely followed criminal health-care fraud case, U.S. v. Clay. Earlier this year, Washington Legal Foundation published a Legal Backgrounder on the case and its broader ramifications, Clay v. United States: When Executives Receive Jail Time for Ordinary Business Decisions. Continue Reading

The Overcriminalization of America

riginally published at Politico by Charles G. Koch & Mark Holden | January 7, 2015
As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. Continue Reading

An Era of Overcriminalization

Originally published by Charles Koch Institute | January 1, 2015
In 2011, fisherman John Yates was convicted of a felony under the Sarbanes-Oxley Act’s “anti-document-shredding” provision, punishable by up to 20 years in prison. What did Yates do to earn a conviction under a law intended to prevent white-collar criminals from defrauding investors and the public? He allegedly threw 3 of 72 fish he had caught back into the Gulf of Mexico. The National Oceanographic and Atmospheric Administration (NOAA) had found the fish to be under the legal minimum size. Earlier this year, the Supreme Court threw out Yates’ conviction. Continue Reading

Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law

Originally published at The Federalist Society by Ronald A. Cass| December 16, 2014
Criminal law is the biggest, scariest tool in the arsenal of governmental powers: it can result in loss of property, loss of freedom, and even loss of life. That theme is repeated through history and literature, as readers of Crime and Punishment, The Count of Monte Cristo, The Gulag Archipelago, or countless other works from countries around the world understand. Criminal law is the means by which government’s coercive power over those within its domain ultimately is effected?either through the direct imposition of criminal punishments or the threat of their imposition. Continue Reading

Yates v. United States: Angling for A Narrower Statute

Originally published at National Review by Jonathan Keim | November 6, 2014
The justices made waves Wednesday during Supreme Court arguments (transcript here) in Yates v. United States, a case about a federal obstruction of justice statute, 18 U.S.C. § 1519, that was passed as part of the Sarbanes-Oxley legislation, which was originally intended to broaden federal white collar criminal laws after the Enron debacle. Continue Reading

The Plague of Overcriminalization

Originally published at NationalReview.com by George Will| December 11, 2014
America might at long last be ready to stare into the abyss of its criminal-justice system. By history’s frequently brutal dialectic, the good that we call progress often comes spasmodically, in lurches propelled by tragedies caused by callousness, folly, or ignorance. With the grand jury’s as yet inexplicable and probably inexcusable refusal to find criminal culpability in Eric Garner’s death on a Staten Island sidewalk, the nation might have experienced sufficient affronts to its sense of decency. It might at long last be ready to stare into the abyss of its criminal-justice system. Continue Reading

What the Peanut Salmonella Case Teaches Us About Overcriminalization

Originally published at The National Review by Eli Lehrer | 9/22/14
Brothers Stewart and Michael Parnell — the company owner and buyer at the center of the salmonella-tainted peanut scandal that killed nine people in 2008 and 2009 — will both face long prison sentences following their convictions on federal charges last week. But the specific way that the brothers will face justice ought to raise some questions for anyone concerned about laws that have granted too much arbitrary power to courts and prosecutors. Quite simply, the Parnells are being prosecuted and sentenced for technical wrongs when their actual crime was much worse. Continue Reading