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.