Tag: costs of overcriminalization

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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 Americans has a criminal record.

We incarcerate more than 19% of the world’s prisoners but make up only 4% of the world’s population. And despite what “real crime” TV would have you believe, less than 2% of federal criminal defendants receive a trial in which the government’s case is put to the test; the vast majority of persons feel compelled to bargain away their constitutional rights in order to receive leniency because our criminal system is so unbalanced.

It may come as a surprise to some, but the Trump administration has been consistently taking steps to address these concerns. Unlike the president’s signing of the FIRST STEP Act, other measures seem to have been overlooked. Regulatory law isn’t everyone’s cup of tea, but the administration’s work to increase fairness in regulatory enforcement is worthy of more attention.

Agency ‘Guidance Documents’ Are Not Law

A federal prosecution needs to be based upon a law passed by Congress. But hundreds of thousands of regulatory laws adopted by agencies further expand the conduct that can be prosecuted. Those regulations are required to be adopted in a manner consistent with Constitutional due process principles reflected in the Administrative Procedure Act.

However, regulators started taking shortcuts and creating “guidance documents” that don’t satisfy APA requirements, and then relying on these “guidance documents” to bind Americans to standards that were never lawfully adopted. This practice is particularly unfair in a criminal case given the potential consequences to the accused.

Thankfully, the Department of Justice has amended its Justice Manual, a document that provides guidance to prosecutors, to clarify that agency guidance documents are not a substitute for law and that “mere noncompliance” with one cannot be the basis of criminal enforcement.

Several executive orders have expanded this rule to all federal agencies. As a former U.S. Attorney, I think it makes perfect sense for the DOJ to instruct its lawyers not to seek jail sentences for those who have merely failed to comply with a non-binding document, but sadly that has not always been true.

To understand the type of case that federal prosecutors can no longer bring, consider Todd Farha, a former health-care executive convicted of “defrauding” the Medicaid program. Farha was charged with criminal offenses based on the way his company, WellCare, filed expense forms to Medicaid that reflected its interpretation of the law.

The government had a different interpretation. The prosecution relied on informal agency guidance documents to convict Farha, even though the guidance was not binding and had never been the subject of public notice and comment. Unfortunately, a court rejected Farha’s appeal, stating that the company’s obligations were governed not only by the law but also by the informal guidance.

This had very real consequences—in a case that involved no harm to any patients and no “bogus” Medicaid claims, Farha was incarcerated for three years because his company failed to comply with a document that prosecutors can no longer rely upon. And he isn’t the only one.

‘Best Practices’ for Enforcement Fairness

I am glad to see that under current DOJ policy, the type of reasoning applied in the Farha case would no longer be acceptable. I am also encouraged to see that the administration has instituted other procedural protections, as set forth recently by Paul Ray, head of the Office of Management and Budget’s Office of Information and Regulatory Affairs in a memorandum directing agencies to review their practices in light of “principles of fairness.”

Included among the “best practices”:

  • Enforcement actions should be prompt and fair;
  • Targets of investigations should be informed when an investigation is closed;
  • There shouldn’t be multiple enforcement actions based on a single set of facts;
  • Performance metrics of government lawyers should incentivize fairness;
  • Favorable evidence should be provided to the accused;
  • Penalties should be proportionate; and
  • Enforcement should be free of coercion and unfair surprise.

In response to this directive, the Department of the Interior announced that all future referrals to the DOJ for prosecution will state whether the accused knew their conduct was prohibited and have made it clear that their agency will focus its “scarce enforcement resources on those who do not merely stumble into a violation, but choose to break the law.”

This list of procedural fairness measures might seem mundane to a law student—surely these are just restatements of what is already required when the government prosecutes a person. But those who practice criminal law realize how far from these ideals many cases have strayed.

We should all be heartened to see the executive branch taking these steps. There is a dire need to see these safeguards in all criminal cases. I hope that any future administration takes heed of these fundamental principles as it goes about the business of prosecuting its own people.

Brett Tolman is a former U.S. Attorney for the District of Utah and current founder and attorney at the Tolman Group, a firm focused on public policy and government reform.

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Too Many Laws Means Too Many Criminals

Originally published at National Review by Timothy Head & Matt Kibbe| 5/21/15

Yates v. US

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.”

That may sound unbelievable, but this is a lesson some Americans have, sadly, learned the hard way, through no real fault of their own.

John Yates, for example, built his career as a commercial fisherman. In August 2007, Yates and his crew were fishing in the Gulf of Mexico off the Florida coast when a state conservation officer, who was also a deputized federal agent, boarded his vessel to inspect their catch of red grouper.

After inspecting some 3,000 fish, the official identified 72 red grouper that did not meet the minimum 20-inch conservation standard and issued a citation from the state. He ordered Yates to bring the undersized catch when he returned to port.

When Yates returned to port the next day, armed federal agents stood by while inspectors reexamined his catch, finding only 69 fish under the minimum standard. Federal officials accused Yates of destroying evidence — the missing three red grouper — related to a federal investigation.

“Nearly three years later, the federal government charged me with the destruction of evidence — yes, fish – to impede a federal investigation. I was subsequently arrested at my home. I have been blacklisted by boat owners, who fear federal investigations similar to mine,” Yates wrote last year. “I am now unable to make a living doing what I love to do.”

In August 2011, Yates was convicted and sentenced to a 30-day jail term and three years of supervised release under a provision in the 2002 Sarbanes–Oxley law, passed in the wake of the Enron scandal. The law’s “anti-shredding” provision, meant to apply to the destruction of documents or files related to a federal financial-fraud investigation, has nothing to do with fish.

Thankfully, the U.S. Supreme Court agreed. In February, it threw out the conviction. And although she strangely voted to uphold the conviction, Justice Elena Kagan surmised that Yates’s unusual case “is unfortunately, not an outlier, but an emblem of a deeper pathology in the federal criminal code.”

That “deeper pathology” is overcriminalization.

In Ayn Rand’s magnum opus, Atlas Shrugged, Doctor Floyd Ferris, one of the book’s main antagonists, told Hank Reardon, a proud producer who had earned the ire of crony special interests and government officials, that “there’s no way to rule innocent men.”

“The only power government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them,” said Ferris. “One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

Fiction has become reality.

The United States now has some 300,000 federal regulations, and this long spool of burdensome and complex red tape grows every year. What’s more, there are about 4,500 federal criminal statutes on the books carrying fines or prison terms for offenders.

There are so many regulations and criminal statutes on the books that a civil-liberties expert and lawyer, Harvey Silverglate, thinks that the average American commits three felonies a day, and they often are not even aware they are breaking the law. That is, not until a federal agency begins an investigation and they are indicted.

House Judiciary Committee chairman Bob Goodlatte (R., Va.) is taking a hard look at federal overcriminalization. At a recent criminal-justice event supported by the Coalition for Public Safety, Representative Goodlatte, in a video message, told attendees, “There is a growing consensus across the political spectrum that our criminal-justice system is in need of reform.”

“The issue of overcriminalization is an issue of liberty,” Goodlatte said. “We must work together to improve our criminal-justice system so that it works fairly and efficiently and reduces crime across the United States.”

Goodlatte, in the previous Congress, put together a bipartisan overcriminalization task force, led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee chairman Jim Sensenbrenner (R., Wis.) and ranking member Bobby Scott (D., Va.), to examine federal criminal laws and make recommendations for reform. The task force held ten hearings.

A civil-liberties expert and lawyer thinks the average American commits three felonies a day, often without knowing that he is breaking the law.

Although similar efforts have failed in the past, this is a cause around which both parties should come together. Our prisons are overcrowded, with far too many nonviolent offenders who have little or no criminal history taking up space that should be reserved for more serious and violent criminals.

Tackling overcriminalization could help reduce skyrocketing prison costs, restrain the out-of-control regulatory state, and end families’ being needlessly ripped apart by unnecessary, out-of-date, or excessive federal statutes.

Most importantly, Goodlatte is right: This is an issue of liberty. Not only would rolling back this brand of big government send a positive message to the country; addressing overcriminalization in a meaningful and substantive way is simply the right thing to do.

— Timothy Head is the executive director of the Faith & Freedom Coalition. Matt Kibbe is the president of FreedomWorks and author of the New York Times best-seller Don’t Hurt People and Don’t Take Their Stuff. Both are members of The Coalition for Public Safety.

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The Overcriminalization of America

Originally 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. This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens. 

Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.

How did we get in this situation? It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over  time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer— first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration. The United States represents about 5 percent of the world’s population but houses about 25 percent of the world’s prisoners.

We have paid a heavy price for mass incarceration and could benefit by reversing this trend. It has been estimated that at least 53 percent of those entering prison were living at or below the U.S. poverty line when their sentence began. Incarceration leads to a 40 percent decrease in annual earnings, reduced job tenure and higher unemployment. A Pew Charitable Trust study revealed that two-thirds of former inmates with earnings in the bottom fifth upon release in 1986 remained at or below that level 20 years later. A Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.”

African-Americans, who make up around 13 percent of the U.S. population but account for almost 40 percent of the inmates, are significantly affected by these issues. According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.” 

Reversing overcriminalization and mass incarceration will improve societal well-being in many respects, most notably by decreasing poverty. Today, approximately 50 million people (about 14 percent of the population) are at or below the U.S. poverty rate. Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society—especially for the disadvantaged.

To bring about such a transformation, we must all set aside partisan politics and collaborate on solutions. That is why we have partnered with the National Association of Criminal Defense Lawyers for more than 10 years to bring about positive changes in our justice system.  

We support a five-step approach to criminal justice reform:

First, “do no more harm.” Legislators must resist the temptation to criminalize activities that do not fit a common-sense understanding of what is a “crime.” Criminal laws should not impose liability if the accused did not knowingly and willfully intend to commit the bad act. This explosion of criminal laws has led to imposing liability on activities that ordinary citizens would have no reason to believe would be criminal such as converting a wild donkey into a private donkey, bathing in the Arkansas Hot Springs National Park without a doctor’s note, and agreeing to take mail to the post office but not dropping it off. It has led to criminal liability for amateur arrowhead collectors who had no idea their hobby could be a federal crime, as well as criminal charges and  a conviction for a former Indianapolis 500 champion who got lost while snowmobiling during a blizzard and unwittingly ended up on federal land.  

Second, we must address prosecutorial abuses—especially in the discovery and grand jury processes. Even the late Senator Ted Stevens fell victim to prosecutorial abuse in his trial when during the discovery process, federal prosecutors systematically concealed evidence that supported the senator’s defense and testimony. Prosecutors must disclose all evidence favorable to the accused to ensure that every American should be treated equally and fairly under the law, whether the accused is a disadvantaged urban teenager or a wealthy corporate executive.

Third, we must ensure that all those charged with a crime receive their Sixth Amendment right to representation by a lawyer. Inadequate or no legal representation results in devastating consequences for criminal defendants and their families.

Fourth, end unduly harsh sentences and resulting disparities by eliminating mandatory minimum sentences that dictate punishment unrelated to the nature or harm of the underlying crime and facts. We must honor the ideal of the punishment fitting the crime by allowing judges to exercise discretion. 

Finally, after a sentence is served, we should restore all rights to youthful and non-violent offenders, such as those involved in personal drug use violations. If ex-offenders can’t get a job, education or housing, how can we possibly expect them to have a productive life? And why should we be surprised when more than half of the people released from prison are again incarcerated within three years of their release?

Hopefully, every lawmaker and committed citizen will support these proposed reforms.  Overcriminalization leads to mass incarceration, undermines race relations and ultimately keeps more people in poverty. We believe the proposed reforms will improve well-being for all Americans, especially the most disadvantaged.