Heritage Report: Overcriminalization: The Legislative Side of the Problem

Originally published at The Heritage Foundaton by Paul J. Larkin, Jr. | 12/13/11

Abstract: The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization.” This phenomenon is likely to lead to a variety of problems for a public trying to comply with the law in good faith. While many of these issues have already been discussed, one problem created by the overcriminalization of American life has not been given the same prominence as others: the fact that overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Indeed, Congress, for a variety of reasons discussed in this paper, is unlikely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. Therefore, the key to curbing overcriminalization is the American public: It is the people who, if made aware of the legislative issues that enable overcriminalization, could begin to head off such laws before the momentum for their passage becomes overwhelming.

The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization”—that is, the promiscuous use of the criminal law to remedy numerous perceived social ills by relegating them to the principal government actors in the criminal justice system (police, prosecutors, defense counsel, judges, and jailers) in order to regulate through criminalization. Four of the hallmarks of overcriminalization are:

  1. The use of strict liability crimes (i.e., offenses that dispense with the requirement that a person act with a “guilty mind,” however defined) to outlaw conduct, particularly in commercial and regulatory fields;
  2. The passage of several laws applicable to the same conduct, which enables prosecutors to multiply charges and thereby threaten a person with a severe term of imprisonment if he does not accept a plea bargain;
  3. The delegation to administrative agencies of the responsibility for filling in the details of a substantive criminal law, which thereby vests in the agency responsible for enforcing the law the power also to define its terms; and
  4. Enforcing through the criminal law conduct that, if it is to be enforced by the government at all, should be enforced through administrative or civil mechanisms.

This phenomenon is likely to lead to a variety of problems for a public that is trying to comply with the law in good faith. At bottom, the flaws in overcriminalization are much the same ones that the Supreme Court long has identified in unduly vague criminal laws: They render it impossible for an individual to understand where the line of criminality lies (indeed, the average person’s ability to understand and comply with a legal code varies inversely with its prolixity and reticulation); they empower prosecutors to make arbitrary charging decisions and coerce parties into pleading guilty by threatening them with potentially massive sentences should they stand trial; and, in cases that go to trial, they leave to the courts the job of deciding after the fact whether someone broke the law, a job that is tantamount to deciding whether to shoot the survivors.

Most of these problems have been discussed extensively in other publications, such as “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” a report prepared by The Heritage Foundation and the National Association of Criminal Defense Lawyers.[1] But one problem created by overcriminalization of American life has not been given the same prominence as the ones noted above: Overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Those difficulties are discussed here.

Legislative Limitations

Legislators have few options in addressing criminal justice problems. To start, they cannot get involved in the decisions in a specific case. The Due Process Clause of the Constitution quite rightly keeps legislators from meddling with specific defendants in particular cases, and any attempt to do so can (at least potentially) compromise the government’s ability to prosecute that party.

Passing legislation, approving law enforcement agencies’ budgets, and conducting public oversight hearings are the principal tools that legislators can employ to affect the crime rate, but those options have their limitations. The last two options work only indirectly by, for example, increasing the number of investigative and support personnel or spurring the existing ones to do a better job. Only through legislation creating new crimes, upping the sentences for offenses already on the books, or reducing the procedural or evidentiary burdens on the police and prosecutors can a legislator have a direct effect on crime.

Even then, however, there are additional limits. The Ex Post Facto and Bill of Attainder Clauses (Art. I, §9, Cl. 3 and § 10, Cl. 1) keep legislators from pursuing the most direct ways to deal with crime: passing a new criminal statute making past conduct an offense, retroactively enhancing the penalties already on the books, or making an outlaw out of a specific individual in a statute itself.

Each of these limitations serves legitimate, important purposes. Ironically, though, they sometimes can wind up channeling legislators into waters that create problems at least as serious as the ones that the U.S. Constitution seeks to avoid.

A New Set of Problems

Since the 1960s, the Supreme Court of the United States has regulated the investigative and trial processes. Using the Fourth, Fifth, and Sixth Amendments as the vehicles, the Court has fenced in nearly every investigative and trial technique—e.g., searches, seizures, arrests, interrogation, lineups, discovery, questioning or immunizing defendants and witnesses, and so forth—with a variety of different rules. The Court also has made clear that Congress cannot tamper with the rules it has created, such as the now-(in)famous Miranda warnings.[2]

But the Court has left unregulated the legislature’s prerogative to define crimes and affix punishments, as well as a prosecutor’s ability to exercise discretion in charging and plea bargaining. As the late Harvard Law School Professor William Stuntz has noted, the result is that, in today’s criminal justice system, those two players have become closer allies than ever.[3]

Here is how such an alliance develops: Some legislators, acting on the presumption that prosecutors will exercise judgment in deciding how far to push the edge of the envelope, will write broadly worded statutes in order to maximize the prosecutor’s discretion. Other legislators, assuming (and perhaps hoping) that expanding criminal liability will affect only those near the periphery of the laws in existence, also will support expanded criminal liability and lengthier sentences because they, too, do not expect prosecutors to go hog wild with their enhanced weapons.

The result is that even legislators acting solely with the public interest in mind will wind up enacting new criminal laws that no one expects to receive the broad construction that their text permits. Of course, other, perhaps less noble-minded legislators will see the process as a no-lose situation: They create the appearance of having remedied a social ill without any risk of a backlash from a politically powerful constituency and without the burden of deciding how to apply the law on a case-by-case basis.[4]

By contrast, there is little constituency for cutting back on the reach of the criminal law. Loosening criminal procedures can be justified on the grounds of de-handcuffing the police or bolstering the efficiency of the trial process. Tightening those same procedures can be supported by the need to protect the innocent or everyone’s civil rights. Broadening the reach of the criminal law can be sold as an effort to reach miscreants that the courts mistakenly (or involuntarily) let walk or as an attempt to adapt old laws to new criminal schemes. That much is fairly straightforward.

What argument, however, will persuade legislators to cut back on a prosecutor’s or court’s generous reading of a criminal statute or to reduce the number of years of imprisonment that a law authorizes? That the legislature previously got it wrong? That the courts erred in sending guilty people to jail? That the prosecutor abused the authority that the legislature gave him and the courts upheld? After all, the courts are widely seen as being experts in interpreting criminal laws; legislators ordinarily support prosecutors’ desire to maximize the weapons at their disposal in the interest of fighting crime; prosecutors ordinarily serve the public good when making charging and plea decisions; and, if the law were unquestionably just and justly prosecuted without exception, there might be no better example of letting the guilty go scot-free.

As a result, few legislators may see any benefit from being “soft on crime,” and if legislators do not care about overcriminalization, why should the public?

“Hard” vs. “Soft” on Crime: A Misguided Legislative Tendency

Why is the legislative tendency toward overcriminalization misguided? There are three short answers.

First, there is the principle that Chief Justice John Marshall articulated in Marbury v. Madison in 1803: “The Government of the United States has been emphatically termed a government of laws, and not of men.”[5] Leaving the interpretation of criminal laws to regulatory agencies, prosecutors, and courts turns that proposition on its head. The legislatures themselves should define the laws so that the average person knows just where the line is that divides lawful from unlawful conduct and just how closely it can be approached.

Second, having overly broad laws or laws whose elements are filled in by politically unaccountable regulators runs afoul of the criminal law tenet, traceable to the laws of the ancient Greeks and often voiced in the Latin expression nulla poena sine lege, that there is no punishment without law.[6] A law that is not readily available to or understandable by the average member of the public is tantamount to no law at all. In fact, the proposition that the public should be able to—and can—find, read, and understand the law, particularly the criminal law, is the moral foundation for the well-known proposition that “ignorance of the law is no excuse.” Take away the practical ability to read and understand the law, and the moral justification for using the criminal law as a tool for regulating conduct is also lost.

Third, making the same conduct a crime under numerous federal criminal statutes allows a prosecutor to threaten a defendant with a potentially massive sentence if he forgoes a plea offer and goes to trial.[7] Absent case-specific proof of racial animus or some other invidious intent, the Constitution does not bar a prosecutor from making good on his promise to throw the book at a defendant who declines a plea offer.[8] Thus, there is a good deal to be said for reining in the overcriminalization process.

There is one other point worth raising separately: The modern practice of making more and more conduct criminal or upping the penalties already on the books for existing crimes can be a misguided way to run a railroad. There already are thousands of federal criminal laws on the books—so many, in fact, that no one knows exactly how many there are.[9] But Senators and Representatives introduce bills that would create new crimes during every session of Congress.

Why? Are the laws on the books inadequate to the task? There is no doubt that technical or scientific advances (e.g., computers) can require new criminal legislation to address novel problems, and changing societal mores can justify revisiting familiar laws (e.g., spousal abuse). But does this nation really need dozens of laws (with more recommended by each new Congress) dealing with lying, cheating, stealing, and fraud?[10] Does America need to add a criminal penalty for the violation of every new commercial, safety, and environmental law? Does adding to the length of the terms of imprisonment for old crimes truly add anything to the retributive, deterrent, and incapacitative effect of the law? If it does, is that benefit worth its costs?

Perhaps legislators should turn their attention to engaging in oversight of the federal, state, and local law enforcement agencies that they arm with new weapons every time one of those bills is signed into law. Perhaps legislators should inquire what beneficial effect society is getting from the legal changes that have occurred over the past quarter-century before adding to the corpus of criminal law. Perhaps legislators should conduct, or demand that someone else accomplish the task of completing, a cost-benefit analysis of the existing body of criminal law before making it bigger.

That type of work is difficult and takes a long time to do well, but maybe it is more important than simply passing a new criminal law and declaring victory over, or even just taking credit for dealing with, a particular crime problem.

Public Awareness: The Key to Combating Overcriminalization

The Supreme Court has rewritten the rules of investigation and trial practice, and those rules will keep some innocent parties from being wrongly convicted, but regulating the procedure used by the police and lawyers will accomplish only so much. As long as lawmaking, charging, and plea bargaining are off-limits to the courts, there will be a risk that innocent parties will be charged with conduct that cannot and should not reasonably be deemed a crime but that exposes them to such a terrifyingly long prison term that, as a practical matter, they have little choice but to accept a plea deal offered by the prosecutor.

The legislative dynamic is not likely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. The public needs to head off such laws before the momentum for their passage becomes overwhelming. And that can happen only if the public is aware of the legislative side of this problem.

Paul J. Larkin, Jr., is Senior Legal Fellow and Manager of the Overcriminalization Initiative in the Center for Legal and Judicial Studies at The Heritage Foundation.


Gibson Guitar Raid: Much to Fret About

Originally published at National Review by Pat Nolan

Federal prosecutors are proving themselves too highly strung.

With military precision, the federal officers surrounded the building, donned flak jackets and helmets, readied their weapons, burst in, and forced terrified employees out at gunpoint. Officers ransacked the facility, seizing computers, papers, and materials.  TOP ARTICLES4/5READ MOREDisney CEO Bob Iger Steps Down

It was the second raid in three years by the Fish and Wildlife Serviceon Gibson, maker of the famous Les Paul guitar. The situation would be laughable, if the consequences for Gibson weren’t so dire.

The law that Gibson allegedly violated is the Lacey Act, which bars importation of wildlife or plants if it breaks the laws of the country of origin. It was intended to stop poachers. The ebony and rosewood that Gibson imported was harvested legally, and the Indian government approved the shipment of the wood. But Fish and Wildlife bureaucrats claim that, because the wood was not finished by Indian workers, it broke Indian law. In other words, a U.S. agency is enforcing foreign labor laws that the foreign government doesn’t even think were violated.

#ad#“In two cases we had a SWAT team, treating us like drug guys, come in and shut us down with no notice,” lamented Gibson chairman and CEO Henry Juszkiewicz. “That’s just wrong. We’re a business. We’re making guitars.” Juszkiewicz says the raid, seizures, and resulting plant closure cost Gibson more than $1 million.

This abusive treatment of a legitimate business like Gibson is not an isolated incident. Small businesses have been similarly raided, and their officers imprisoned, for such minor offenses as importing lobster tails in plastic rather than cardboard (three men were given eight-year prison sentences) and sloppy labeling on imported orchids (the accused was given a 17-month sentence).

The Gibson assaults are further evidence that America’s criminal-justice system has strayed far from its central purpose: stopping the bad guys from harming us. SWAT-team raids were designed to arrest notoriously violent gangsters, and stop them from destroying evidence. Now, the police powers of the state are being used to attack businesses. (Were the feds afraid that the Gibson workers would flush the guitars down the toilet?)

It is time to get the criminal law back to basics. Fighting terrorism, drug cartels, rapists, and murderers is enough to keep law enforcement busy. To expand that fight to include such esoteric social causes as protecting Indian workers dilutes the resources needed to fight real crime. Why do we care who finishes the wood on guitars? And why are we applying the power of the state in its rawest form to enforce Indian labor laws?

Prosecutors who are looking for an easy “win” know that businesses roll over. A public raid on its offices, or an indictment of its officers, can destroy a business’s reputation and viability. That makes the owners easy to intimidate into a plea bargain.

If they choose to fight, they face the full wrath and fury of the feds. In the Gibson raids, the SWAT teams were deployed even though Gibson had offered its full cooperation to investigators. Such raids are increasingly used to intimidate citizens under suspicion. The orchid importer, a 65-year-old with Parkinson’s, was shoved against a wall by armed officers in flak jackets, frisked, and forced into a chair without explanation while his home was searched.

The government also attempts to get low-level employees to “finger” their bosses. For example, the feds threatened Gibson employees with long prison sentences. This is not a search for truth, but an immoral attempt at extortion to win convictions. Investigators examine the lives of “little fish” and use minor, unrelated violations (smoking a joint, or exaggerating income on a loan application) to pressure them to back the government’s case against their employers. Mobsters have experience with threats like this, but a secretary or an accountant is scared to death by the threat of prosecution.

A favorite ploy of prosecutors in these cases is to charge defendants with false statements based on their answers to the investigators. The sentence for this can be five years in prison. No recording is made of the interviews — in fact, the feds prohibit taping the interviews — and the agents are not stenographers. They cannot possibly recall the exact wording of the questions and the answers. Yet after the interview, they will produce a “transcript” replete with quotes throughout. And if a witness says he did not actually say what the agent put in quotes, it is the witness’s word against a fine, upstanding federal agent’s. Staring at a five-year sentence will get most people to say whatever the government wants them to.

The feds also pile up charges. According to Juszkiewicz, the Justice Department warned Gibson that each instance of shipping a guitar from its facility would bring an added charge of obstruction of justice. Prosecutors routinely add extra counts to stack potential prison sentences higher. For instance, faxing invoices for the wood would be charged as wire fraud. Depositing the check for the sale of the guitars would be money laundering. The CEO’s telling the press he is innocent would bring charges of fraud or stock manipulation. The intent is to threaten such long sentences that the targets plead guilty rather than risk decades in prison.

Prosecutors further tighten the screws by seizing the assets of the company, a tactic once used against pirates and drug lords but now routinely used to prosecute white-collar crimes. The federal agents seized six guitars and several pallets of ebony during their initial 2009 raid against Gibson. Federal law allows assets to be seized not just from convicted criminals, but also from those never charged. Owners must prove that the forfeited property was obtained legally; otherwise, the government can keep it. That gives the government incredible leverage, because without the seized inventory and bank accounts, the business will most likely go under. How can Gibson make guitars if the wood is being held by the government? How can it service customers when the government took its computers as evidence? How can it pay lawyers when its bank accounts were seized? Asset forfeitures bring to mind a similar twist on the law uttered by the Queen of Hearts in Alice in Wonderland: “Sentence first, verdict afterwards.”

America has become overcriminalized.The Gibson raids highlight how America’s criminal-justice system has become a Rube Goldberg contraption of laws and sentencing policies that have no consistent focus — and there is little relationship between the length of the prison sentence and the harm caused by a violation.

When the Constitution was adopted, there were three federal crimes: treason, piracy, and counterfeiting. Now, there are more federal crimes than we can count — literally. The Congressional Research Service tried to tally the number of crimes sprinkled throughout federal codes, but gave up at 4,450. That does not include more than 10,000 regulations that carry criminal penalties. It’s a wonder anyone can survive 24 hours without violating some obscure statute or rule.

And while Gibson has yet to be formally charged, why would the government choose to pursue the company under criminal laws, seeking to send the officers of the company to prison? The power to imprison is the one of the most severe authorities we cede to government. The lives of incarcerated people are not their own: They cannot choose where to live, with whom to associate, when to eat, or what to do with their time. Because it carries such harsh sanctions, criminal law has always been reserved for morally reprehensible acts such as murder, rape, arson, and robbery.

However, federal bureaucrats no longer feel constrained to limit criminal prosecutions to blameworthy actions that virtually everyone in society would agree are morally wrong. After all, in the age of moral relativism, who is to say what is moral or not? Instead, this moral basis of the law has been cast aside in favor of a broad authority to criminalize conduct that Congress (or, more likely, a mere handful of legislative staffers or agency bureaucrats) decides is “wrong.” Whereas behaviors were once criminal because they were inherently bad, modern law makes certain actions criminal merely because a majority of legislators think they should be prohibited, and criminal sanctions are imposed to make it clear the lawmakers really, really don’t like the conduct.

By unpinning criminal law from its moral roots, we now impose the harshest sentences on activities that are deemed improper by those with the loudest voices. Thus, the lobster fishermen who shipped their catch in the improper containers received longer sentences than some murderers. And Gibson is raided by federal commandos not because the company poses a threat to anyone, but merely because the American government has found it to be in violation of India’s labor laws.

This is government by whim, and these “whim” crimes are not based on evil intent. In fact, they require no intent at all. They are “strict liability” crimes — you don’t have to know you are acting unlawfully to be sent to prison.

#ad#The Heritage Foundation points out that “a core principle of the American system of justice is that no one should be subjected to criminal punishment for conduct that he did not know was illegal or otherwise wrongful.” These whim laws have discarded the centuries-old requirement of mens rea, or guilty intent. From today’s perspective, the old adage “ignorance of the law is no excuse” assumes that it is possible to know all the intricacies of tens of thousands of federal statutes and regulations. Nonetheless, if we inadvertently violate one of them, we face years in prison. We are modern Gullivers, tethered to the ground by the sinews of the criminal law.

Fortunately, many are fighting against this distressing trend. Groups as diverse as the Heritage Foundation, the American Civil Liberties Union, Prison Fellowship, the Cato Institute, and the National Association of Criminal Defense Lawyers have joined forces under the leadership of former Attorney General Ed Meese to fight the overcriminalization of America.

Meese is also active in Right on Crime, a group of leading conservatives working to apply free-market, conservative principles to the criminal-justice system. Some of the prominent conservative signatories of the Right on Crime Statement of Principles are Bill Bennett, Jeb Bush, Newt Gingrich, Asa Hutchinson, Chuck Colson, and Grover Norquist. We believe that “criminal law should be reserved for conduct that is either blameworthy or threatens public safety, not wielded to grow government and undermine economic freedom.” Congress needs to rein in runaway federal prosecutors who are threatening legitimate businesses. They can start by bringing DOJ officials before a public hearing to inquire into the raids, and ask some questions. What criteria does the DOJ use to send in a SWAT team when a subpoena would suffice? Why is it a priority of U.S. law enforcement to enforce Indian labor laws that India is not enforcing? Why doesn’t federal policy require that interviews be recorded?

Alexis de Tocqueville warned that the greatest danger to a democracy was “soft despotism”:

It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

Congress needs to act quickly before the federal government compresses, enervates, extinguishes, and stupefies us. They need to bring our criminal laws back to basics: Get off the backs of businesses and keep us safe from truly dangerous and morally wrongful behavior.

— Pat Nolan is vice president of Prison Fellowship and director of its criminal-justice-reform division, Justice Fellowship.