The Washington Legal Foundation published a Legal Backgrounder by white-collar defense attorney John Lauro on July 16. The article discusses the application of the Chevron doctrine in the criminal law context.
In particular, Mr. Lauro analyzes judicial rulings on deferring to agency’s interpretation of a statute and a recent Justice Department policy that henceforth, agency guidance documents cannot create any additional legal obligations on the regulated community.
Mr. Lauro applied that analysis retrospectively to U.S. v. Clay 832 F.3d 1259 (11th Cir. 2016), in which federal prosecutors applied an agency’s “informal guidance” regarding its interpretation of a Florida healthcare statute to secure the conviction of WellCare executives, including CEO Todd Farha.
Defense attorneys now have a new weapon in their arsenal to challenge criminal prosecutions based on informal agency guidance.
Much has been written about the “Chevron Doctrine” and its impact on administrative law. In Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), decided over a generation ago, the U.S. Supreme Court established a principle of judicial deference to an administrative agency’s interpretation of its operating statute where the agency reached a “reasonable” construction of an otherwise ambiguous statute. Chevron presumes that modern life has become so complicated that experts within agencies need latitude to fill in the details of how a legislative scheme should operate. The ruling became engrained in modern administrative law, while relegating the courts to a secondary role in statutory construction.
Less has been written about how Chevron deference has crept into federal criminal law and how the courts often give wide latitude to agencies to define criminal liability for regulated entities and their employees.1 Indeed, it is not unusual for a court in a criminal case to “defer” to an agency’s interpretation of a statute and accord that interpretation the force of law, even where the agency has not acted through formal rulemaking.
I was counsel in such a case several years ago where healthcare executives were convicted under the federal healthcare fraud statutes for failing to abide by an agency’s “informal guidance” regarding its interpretation of a Florida healthcare statute. The case, U.S. v. Clay, 832 F.3d 1259 (11th Cir. 2016), cert. denied, 137 S. Ct. 1814 (2017), illustrates how criminal liability can be created when the courts go too far in deferring to the administrative state.
Clay involved WellCare Health Plans, Inc., a Tampa-based public holding company for certain HMO plans (“WellCare”) providing healthcare services to Florida Medicaid patients. The Agency for Healthcare Administration (“AHCA”) administered the Florida Medicaid program. In the early 2000s, the Florida legislature decided to engage HMOs in providing health care to Medicare patients under a managed-care system, rather than using an inefficient fee-for-service reimbursement scheme. Florida intended to contain healthcare costs that consumed a substantial part of the state’s budget each year and shift that economic risk to HMOs, while providing a broader array of clinicians for Medicaid recipients.2
In connection with this new regulatory scheme, the Florida legislature passed an “80/20 Statute,” Fla. Stat § 409.912(4)(b) (2006), requiring recipients of Medicaid funds to report back to the state expenditures for the provision of behavioral health care. Under the statute, if an HMO spent less than 80% of the dollars received for the provision of behavioral health care, then it had to return the difference to the state each year. For example, if an HMO received $100 for behavioral health care, but spent only $75 for the provision of that care, then $5 would be returned to the state.3
Although AHCA was responsible for administering this new statute, it chose not to engage in formal rulemaking to determine how to complete the calculation. The agency itself was deeply divided, and many bureaucrats resisted the use of HMOs in the provision of behavioral health care. Instead of engaging in rulemaking, AHCA merely incorporated the legislative language in its contracts with HMOs and then sent out informal letters and templates suggesting how to complete the calculation. This critical decision to use “informal guidance” led to federal criminal prosecution.
WellCare had established a specialized behavioral healthcare organization (“BHO”) to coordinate all behavioral healthcare services and to hire frontline clinicians such as psychiatrists and community mental health centers. The care the BHO delivered was not in question and state auditors noted that the BHO “exceeded requirements” in providing clinical care. WellCare, in turn, counted the total amounts it paid to the BHO for its “80/20 calculations.” AHCA never adopted a rule prohibiting this methodology and WellCare’s counsel advised the company that other healthcare companies had safely taken a similar approach. Over several years of reporting, AHCA never specifically asked, and WellCare never specifically informed the agency that it was using a BHO for the calculation.
Federal prosecutors indicted the CFO of the company, along with four other executives, including WellCare’s CEO Todd Farha. The prosecution argued that WellCare had misled AHCA by including in its “80/20 calculation” payments made to an affiliated BHO, rather than including only the payments made to “frontline” providers. The prosecution did not rely on the “80/20 Statute” or the Medicaid contracts that actually supported WellCare’s method of calculation. Instead, they pointed to AHCA’s informal “guidance,” which included letters and calculation templates. Testimony from attorneys who had represented WellCare and a medical economics expert, however, confirmed that WellCare’s calculation methodology was “reasonable.”
Following a three-month trial and a deliberation spanning nearly a month, the jury rendered a mixed verdict. Although it convicted three of the executives of healthcare fraud for one of the “80/20 calculations,” the jury acquitted all the defendants of the primary conspiracy charge. The trial judge, recognizing that the case was very unique in that WellCare provided outstanding healthcare, sentenced the defendants to probation and 1-3 years—well below the draconian sentences of over 15 years recommended by the prosecutors. The defendants appealed.
The Eleventh Circuit rendered a problematic decision that upheld the convictions. The court rejected the defendants’ defense articulated in an Eleventh Circuit decision, U.S. v. Whiteside, 285 F. 3d 1345 (11th Cir. 2002), that the government had not proven beyond a reasonable doubt that their interpretation of governing legal authority was not objectively unreasonable. In Whiteside, the Eleventh Circuit held that “where the truth or falsity of the statement centers on an interpretative question of law, the government bears the burden of proving beyond a reasonable doubt that the defendant’s statement is not true under any reasonable interpretation of the law.” Whiteside, 285 F. 3d at 1351.
Not finding any inconsistencies between WellCare’s calculations and the “80/20 Statute” or WellCare’s Medicaid contracts, the Clay court held instead that the defendants had not scrupulously followed AHCA’s informal “guidance” found in its letters and calculation templates. Despite trial testimony from a former high-ranking AHCA official who had advised WellCare that, under Florida law, regulated entities did not have to follow informal guidance that had not been subjected to formal rulemaking, the Eleventh Circuit accorded these informal communications the status of governing law. The court concluded that failing to follow the “strict” interpretation of these informal communications constituted a crime. In other words, administrative agencies could make binding law through informal “guidance” that failing to follow informal agency guidance while not expressly informing the agency of that course of action, could be a criminal violation.
The defendants’ certiorari petition focused on the Eleventh Circuit’s watered-down interpretation of mens rea from a “knowing” violation to “deliberate indifference.”4 Although the Court denied review, one wonders how the Court would address deference to agency interpretations in connection with criminal law. Justices Thomas, Gorsuch, and Kavanaugh have expressed doubt that Chevron deference can be squared with a republican form of government based upon separation of powers in the administrative and civil context.5 It is likely, therefore, that at least three justices, and perhaps more given the criminal context, would be even less tolerant of administrative agencies “making” federal criminal law.
Providing defense attorneys with some ammunition, the Justice Department issued a memorandum in January 20186 that agency “[g]uidance documents cannot create binding requirements that do not already exist by statute or regulations. . . the Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules.” Although the memorandum was directed primarily at civil enforcement, it has equal (if not more) force with regard to criminal prosecutions, which result in the deprivation of liberty. The memorandum warns federal prosecutors that if “a party fails to comply with agency guidance expanding upon statutory or regulatory requirements [that] does not mean that the party violated those underlying legal requirements; agency guidance documents cannot create any additional legal obligations.” Under current DOJ policy, then, government prosecutors would be precluded—as they did in the Clay case—from arguing that informal agency letters could constitute binding authority on the regulated public.
Deference to informal agency guidance is yet another manifestation of the scourge of overcriminalization, which includes prosecutorial misconduct;7 relaxed standards for mens rea/criminal intent;8 ambiguous jury instructions9 and the use of negligence or conscious avoidance concepts to convict individuals.10
Chevron deference emanated from the belief that administrative agencies are simply following the law and carrying out the directions of elected official in a politically neutral way. Those days are plainly over. Defense attorneys know all too well that the entrenched bureaucracy has its own agenda—often at odds with elected legislatures. The judiciary should not imbue unaccountable bureaucrats with the authority to create law—let alone criminal law. Citizens’ lives and freedom are at stake. Just ask the WellCare executives.
The relevant language of the statute is as follows: “all contracts issued pursuant to this paragraph shall require 80 percent of the capitation paid to the managed care plan, including health maintenance organizations, to be expended for the provision of behavioral health care services. In the event the managed care plan expends less than 80 percent of the capitation . . . for the provision of behavioral health care services, the difference shall be returned to the agency. Fla. Stat. § 409.912(4)(b) (2006).”
Originally published at Manhattan-Institute by Rafael A. Mangual | January 1, 2019
The passage of the First Step Act — the criminal-justice and prison-reform bill championed by President Trump — was a rare bipartisan triumph in this age of deep polarization.
But the bill left much unaddressed and was missing another reform that conservatives have long pressed for: namely, stopping the explosion in the number of federal crimes, well beyond what the average citizen should be expected to know or abide by.
Call that the Next Step.
Given the bipartisan cooperation behind First Step, congressional Republicans should now nudge their Democratic colleagues to address the serious issue of federal overcriminalization.
That means addressing four main problems.
First, as already mentioned, there is the sheer number of federal criminal prohibitions on the books. Though no one can say for sure just how many federal crimes exist, estimates put the number at more than 300,000, a ridiculous number of crimes for Americans to be versed in.
These include prohibitions on selling “spaghetti sauce with meat” that contains less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle and walking a dog on a leash longer than six feet on federal property.
Second, a majority of federal crimes lack meaningful intent requirements, bucking centuries of legal tradition requiring that prosecutors establish mens rea (that the defendant acted with a guilty mind) to secure a conviction.
This lack of intent requirements is especially troubling considering the fact that thousands upon thousands of federal statutes could result in a felony conviction if violated.
Third, many federal crimes are, counterintuitively, codified outside the federal criminal code (Title 18). Instead, they are sprinkled throughout the many thousands of pages of federal statutes and regulations.
Finally, less than 2 percent of federal criminal law — about 5,000 of the more than 300,000 crimes — are statutes passed by both houses of Congress and signed into law by the president. Instead, the overwhelming majority are criminally enforceable regulations created by politically unaccountable bureaucrats.
This last problem is best understood as “criminalization without representation.” It is a direct threat to individual liberty and a hindrance to a well-functioning market economy.
Collectively, these problems have created a body of criminal law that is far too large and disorganized for anyone to read, let alone internalize. Coupled with the erosion of criminal-intent standards, this means that each of us by some estimates commits, on average, three federal felonies a day.
In addition to significantly raising the cost of legal compliance, which in turn raises the cost of doing business, overcriminalization tramples on core American principles of representation, fair notice and due process.
So what should the “next step” look like?
First, it should include a default criminal intent standard that would apply to any federal crime that doesn’t explicitly state whether, and to what extent, a showing of intent is a prerequisite for conviction.
This was part of an earlier bipartisan package of reforms scuttled at the last minute by the Obama administration and opposed by left-wing groups, though many of these same outfits loudly backed the First Step Act.
Second, the next reform should restore political accountability to the process of crime creation by restricting to civil enforcement all rules that haven’t passed both houses of Congress through the process most of us have been familiar with since childhood, thanks to “Schoolhouse Rock.”
Enacting such reforms to reduce federal overcriminalization would require Democrats to reciprocate the support they recently received from Republicans for First Step. Given the midterm-election results, that may be a tall order. Yet it should be made a priority not merely as a show of bipartisanship, but because, as the president said of the First Step Act, it’s “the right thing to do.”
______________________
Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute. Follow him on Twitter here.
Originally published at National Review by James R. Copland and Rafael A. Mangual| October 11, 2018
Across the country, well-meaning Americans face the threat of prosecution for violating state laws that criminalize unobjectionable behavior.
In the wake of Hurricane Florence, North Carolina prosecutors served Tammie Hedges with a twelve-count criminal indictment. Hedges runs a non-profit group, Crazy’s Claws N Paws, and during the storm she offered both shelter and basic first aid to pets whose evacuating owners could not take them along. Local officials, at the behest of the state’s Department of Agriculture, accused Ms. Hedges of practicing veterinary medicine without a license.
Facing a public outcry, prosecutors have since dropped these charges. But other individuals who find themselves in the state’s prosecutorial crosshairs have had to go to court to vindicate their rights. Among these was another North Carolinian, Steve Cooksey, who in 2012 was accused by the state of the unlicensed practice of dietetics after he blogged about his dietary practices. Cooksey eventually won a challenge before the U.S. Court of Appeals on First Amendment grounds, but Steven Pruner, another North Carolinian, was not so lucky: In 2011, he was sentenced to 45 days of police custody for selling hot dogs without a permit from his food cart outside the Duke University Medical Center.
North Carolina is hardly alone in criminally prosecuting individuals who unknowingly run afoul of picayune regulatory laws with little to no public-health or -safety purpose. An Oklahoma bartender was prosecuted for serving vodkas infused with flavors like bacon and pickles; a Minnesota man was jailed for the crime of not finishing the siding on his own house; and a California mom was prosecuted for selling homemade ceviche through a recipe-exchange group on Facebook.
In every state in the union, well-meaning individuals face the threat of prosecution for violating regulations that criminalize morally unobjectionable behavior. A new Manhattan Institute report we co-authored assesses the state of criminal law across multiple states and finds that unnecessary criminal statutes abound. States’ criminal codes are three to ten times longer than the Model Penal Code promulgated by the august collection of scholars and practitioners at the American Law Institute. More than 77 percent of new crimes are codified outside the criminal code. And a large fraction of state crimes are never voted on by elected representatives, because criminal-lawmaking power is regularly delegated to bureaucrats or even private licensing boards.
Some of the criminal regulations we have studied are silly, such as an old South Carolina law promising jail time for the unlicensed practice of fortunetelling. (Exactly how one would license a fortuneteller remains unclear.) Others make some sense — including the veterinary-licensing requirements that ensnared Ms. Hedges. (Dispensing potentially dangerous pharmaceuticals to care for Spot and Fido raises legitimate public-health and -safety concerns.) But the proliferation of criminal laws makes it almost impossible for citizens to know what can land them in handcuffs.
What, then, is to be done? There are various steps states can take to streamline their criminal laws, protect those who unknowingly violate rules, and make lawmakers more accountable.
Legislatures should focus on making their criminal laws easier to follow, as well as on trimming unnecessary, duplicative, and unjust statutes from the books. Earlier this summer, the North Carolina legislature gave its imprimatur to a working group tasked with recodifying the state’s crimes into a comprehensive criminal code. In 2014, Minnesota governor Mark Dayton called the legislature into an “unsession” focused on pruning outmoded laws; more than 1,175 crimes were repealed in the effort. Other states would be wise to follow such examples.
Legislatures should also enact rules that protect individuals who unintentionally violate a rule that does not involve dangerous or onerous conduct. All states should join the 15 that have established a default level of criminal intent that prosecutors must prove to secure a conviction, unless the legislature expressly says otherwise. States should also expand the ability of individuals to assert a “mistake of law” defense if they can show they made a genuine good-faith effort to comply with legal rules.
Finally, legislatures should stop the practice of delegating their criminal-lawmaking authority to unelected officials. Regulatory agencies may be better equipped to draft complex regulatory codes, but there is little excuse for allowing them to unilaterally write rules that can land citizens behind bars.
After all, most individuals and businesses unlucky enough to run afoul of such laws won’t be as lucky as Tammie Hedges, who escaped prosecution largely because her case made national news. If we’re serious about addressing the problem that landed an animal lover in handcuffs, it’s time we started reversing the overcriminalization of America.
Originally published at Manhattan-Institute by James R. Copland and Rafael A. Mangual | August 8, 2018
EXECUTIVE SUMMARY
Building on previous MI studies, this paper lays out the contours of America’s state-level overcriminalization problem. Today, state statutory and regulatory codes overflow with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.
The proposed model legislation and executive order in this paper offer a framework for state lawmakers to address the overcriminalization problem. These policies:
Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created.
American law today has a way of making criminals out of ordinary citizens and small business owners:
In 2016, authorities in Oklahoma prosecuted bartender Colin Grizzle for serving vodkas infused with flavors like bacon and pickles. The practice, though popular with patrons, violated Title 37, Chapter 3, Section 584 of the Oklahoma Code.[1]
In 2012, a Minnesota man, Mitch Faber, was jailed for the crime of not finishing the siding on his own house.[2]
In 2011, North Carolina authorities prosecuted Steven Pruner for selling hot dogs from his food cart outside the Duke University Medical Center without a permit. Pruner was sentenced to 45 days of police custody.[3]
Parents today face criminal sanction if they let children run free—as South Carolina mother Debra Harrell discovered in 2014, when she was arrested and lost custody of her nine-year-old child, whom she had allowed to play alone in a park.[4] But parents who drop children off in others’ care can unwittingly place their friends in criminal jeopardy; in 2009, a Michigan woman, Lisa Snyder, was threatened with arrest after it was discovered that she was taking her neighbors’ kids to the school bus stop each morning, which state regulators considered a violation of laws banning unlicensed day care.[5]
In some cases, states have delegated criminal lawmaking authority to unelected regulators and private boards. Such boards have asserted surprisingly sweeping powers. In 2012, the North Carolina Board of Dietetics and Nutrition accused Steve Cooksey of an unlicensed practice of dietetics, a misdemeanor under a catchall provision criminalizing any violation of dietetics or nutrition provisions in the general statutes.[6]
Cooksey’s crime? After battling life-threatening diabetes, he had started an Internet blog, in which he shared his experiences, described how a new diet had helped him overcome his serious condition, and answered questions posed by blog readers.[7] According to the board, the crime extended to ordinary advice exchanged in private e-mails and telephone calls between his friends and readers.[8] Cooksey ultimately prevailed in a First Amendment challenge to the law brought by the litigation nonprofit Institute for Justice;[9] but individuals and business owners without such strong free-speech claims are not afforded a similar ability to get out of jail.
Cooksey’s alleged violation was unknowing—but that offered him little recourse. In most jurisdictions, the fact that someone accused of a crime was engaged in seemingly innocent conduct and had no reason to know that he was breaking the law affords no defense.
In 2007, a Michigan appeals court upheld the conviction of Kenneth Schumacher for the unlawful disposal of scrap tires, which included a sentence of 270 days in jail and a $10,000 fine. Schumacher had not known that the facility where he deposited his tires had seen its permit expire; he believed it to be a legal depository.[10] The court nevertheless determined that Schumacher’s subjective judgment that his delivery was legal did not absolve him of the environmental law’s strict licensing rule.[11] (Michigan has since adopted a law that requires a showing of criminal intent for any crime unless the legislature expressly states otherwise; but it remains a minority rule across the states, including in North Carolina.)
These cases exemplify “overcriminalization,” which describes the rapid growth in the number of criminally enforceable rules and regulations. Overcriminalization particularly refers to crimes for conduct that is not intuitively thought of as criminal.
Overcriminalization in the U.S. has drawn increasing scrutiny by politicians,[12] judges,[13] scholars,[14] and policy analysts.[15] In 2010, coauthor Copland published a book chapter looking at overcriminalization in New York State.[16] Four years later, the Manhattan Institute began to systematically study overcriminalization at the state level, through jurisdiction-specific analyses of quantitative and qualitative trends in state criminal lawmaking. Reports on criminal law in Michigan,[17] Minnesota,[18] North Carolina,[19] Oklahoma,[20] and South Carolina,[21] as well as additional analysis of surrounding states, identified overcriminalization as a serious problem.
Overcriminalization goes beyond the mere presence of too many laws on statute books. Our research has highlighted fundamental deficiencies in how crimes are created and codified. These deficiencies undermine political accountability and erode the structural limits on government action that preserve our freedoms. Overcriminalization is exacerbated by the erosion of traditional intent requirements and other due-process protections in criminal cases.
This paper builds upon the collective findings of our series of state-specific reports and proposes model legislation and executive orders that states can adapt to ameliorate overcriminalization.
Overcriminalizing America
Too Many Crimes
“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
—James Madison, Federalist No. 62
In the Overcriminalizing America series of reports, Manhattan Institute scholars observed bloated criminal codes—sometimes several times larger than the Model Penal Code (Figure 1). (The Model Penal Code is a document drafted by the American Law Institute—an independent group of lawyers, judges, and academics—to “assist legislatures in making a major effort to appraise the content of the penal law by a contemporary reasoned judgment.”)[22]
In comparison with the Model Penal Code’s 114 sections, the criminal codes in Michigan and North Carolina, measured in 2014, had 918 and 765 sections, respectively; those in Minnesota, Oklahoma, and South Carolina, measured in 2016, contained 327, 1,232, and 557 sections, respectively. These state criminal codes varied between 129,000 and 293,000 words. Michigan’s criminal code, for example, uses 266,300 words—taking up 500 pages of 10-point, double-spaced Times New Roman text.
As voluminous as these state criminal codes are, they only begin to scratch the surface in cataloging how many crimes are actually on a state’s books. Many state crimes are codified not in penal codes but in other parts of the broader statutory code, in the vast array of agency-created regulation, and even in private licensing-board rules that have de facto criminal effect through “catchall” statutory delegations of criminal lawmaking power. In each of the five states studied in the Overcriminalizing America series, a majority of new crimes created by statute in the preceding six years were codified outside the criminal code—including 83% of new crimes enacted in Minnesota, 86% of new crimes enacted in South Carolina, and 91% of new crimes enacted in Oklahoma.
During the six-year periods studied, the five states added to their criminal statutes at alarming rates (Figure 2), creating 26–60 new crimes annually—an average of 42 per year. Many of the new crimes created in these jurisdictions were felonies (Figure 3).
The creation of new crimes has hardly slowed down in the years since we released our reports. During the 2015–16 legislative sessions in Michigan,[23] North Carolina,[24] and South Carolina[25], the state legislatures added an average of 37 new crimes to their books.
Outmoded, Silly, and Poorly Written Laws
“We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws.”
—Antonin Scalia, Sykes v. United States, 564 U.S. 1 (2011)
What do some of the crimes populating state statute books look like? Many are duplicative. For example, in 2012, North Carolina enacted a statute criminalizing the theft or vandalizing of portable toilets—acts presumably covered by the state’s general prohibitions on theft and vandalism.[26] The separate codification of acts covered by existing statutes makes the criminal law harder for the average citizen to follow.
Other crimes created during the periods studied border on the ridiculous. Consider a 2011 Oklahoma statute criminalizing the “[f]ailure to leave any gates, doors, fences, road blocks and obstacles or signs in the condition in which they were found, while engaged in the recreational use of the land of another.”[27] Some statutes are so poorly drafted that they remove all objectivity from the process of determining whether a crime was committed. This was the case for a 2012 Minnesota statute prohibiting drug and alcohol abuse counselors from imposing on their clients “any stereotypes of behavior, values, or roles related to human diversity.”[28] What constitutes such a stereotype is left undefined in the statute.
When considering the problems created by ill-considered new additions to the statute books, often overlooked are the problems that stem from old crimes that, while rarely enforced, remain on the books, contributing to the obesity of a state’s body of criminal law. In South Carolina, for example, an old law prohibits, on pain of imprisonment, unlicensed fortune-telling. How one goes about the licensing of fortune-tellers is unclear. A more important question is why such an archaic statute should remain on the books. We have found no example of present-day enforcement of this law.
Other examples include:
Prohibiting the temporary taking of horses or mules (North Carolina)[29]
Prohibiting minors under the age of 18 from playing pinball (South Carolina)[31]
The constant creation of new crimes, coupled with the failure to prune the statute books of old crimes, raises the transaction costs of legal compliance and exacerbates one’s risk of becoming entangled in the ever-growing web of state criminal law.
Counterintuitive Codification
“We concluded that the hunt to say, ‘Here is an exact number of federal crimes,’ is likely to prove futile and inaccurate —James Strazzella, author of the american bar association report “The Federalization of Criminal Law”
Imagine being the proprietor of a small business and wanting to figure out whether something is a criminal offense. Where do you look? Most would answer: “The criminal code.” Yet that would be a risky proposition: newly created crimes are often codified outside state criminal codes, in other chapters of the broader statutory code. Indeed, in all five states that we examined, a majority of the crimes created during the six-year periods studied were codified outside their respective criminal codes: 55% for North Carolina, 73% for Michigan, 83% for Minnesota, 86% for South Carolina, and 91% for Oklahoma (Figure 4).
When crimes are codified outside a state’s criminal code, people who want to stay out of prison must sift through every chapter of the state’s broader statutory code. Parsing through volumes of code with word counts exceeding Tolstoy’s War and Peace is difficult for a trained legal professional, let alone a layman. After such parsing, one would still need to read the broad array of catchall provisions attaching criminal liability to the rules and regulations promulgated by agency officials, government boards, and private licensing bodies.
Erosion of Mens Rea
“Even a dog knows the difference between being kicked, and being stumbled over.”
—Oliver Wendell Holmes, Jr., The Common Law (1888)
The long-standing tradition in Anglo-American legal systems has been that every crime has two elements: (1) it is a bad act (Latin: actus reus); and (2) it is undertaken with a guilty mind (mens rea).[32] The criminal law has also recognized that there are varying levels of culpability. Generally speaking, offenders can act purposefully, knowingly, recklessly, and negligently. These are terms of art whose definitions are not necessary to set out here; but readers should have a sense of the historical backdrop with which they should view current trends in criminal lawmaking.
State lawmakers have often failed to specify any intent requirements in the crimes that have been added to statutory codes in recent years. In Michigan, a study done by the Mackinac Center for Public Policy found that of the 3,102 crimes on state books in 2014, 27% of felonies (321 of 1,209) and 59% of misdemeanors (1,120 of 1,893) contained no mens rea provision.[33]
Many state courts have interpreted statutory silence on criminal intent as the legislature’s intent to create a strict-liability offense (one for which proof of mental culpability is not required). But this is unlikely. Statutory silence on intent in most cases does not reflect a considered decision on the part of legislators to create a strict-liability crime; rather, it is a likely by-product of ad hoc decision making by different statutory drafters. Regardless, inverting the Model Penal Code’s default rule that mens rea is required absent an express statutory command to the contrary leaves citizens at even greater risk: prosecutors would have only to prove that the defendant committed the prohibited act or omission.
Criminalization Without Representation
“Governments are instituted among Men, deriving their just powers from the consent of the governed.”
—Declaration of Independence (1776)
Due to the sweep of the modern regulatory state, legislators regularly delegate details to the executive branch or, in some cases, to private bodies. Statutory catchall provisions make it a crime to violate any of the vast swaths of rules, regulations, and permitting requirements developed outside legislative input or review. We have dubbed this phenomenon “criminalization without representation.”[34]
In North Carolina, for example, statutory catchall provisions make it a crime to violate any rule adopted by various boards, agency commissioners, and secretaries in the areas of public health, agriculture, and environment,[35] as well as private licensing boards in medicine, dentistry, and nutrition.[36] Further, most local ordinance violations in North Carolina are state criminal misdemeanors.[37] None of these catchall provisions contains any criminal-intent standard, despite the fact that much of the prohibited conduct is unlikely to be intuitively criminal.
North Carolina is not unique. Similar statutory catchall provisions delegating state criminal lawmaking power to unelected or local boards, or to single executive branch officials, exist in the other states studied.[38] Such catchall provisions attach criminal penalties to each rule promulgated by a non-legislative individual or board before any rule is actually created. When criminal rules are then promulgated, after the statute in question becomes law, the elected legislature is not required to review or approve the new crimes.
For an example of how criminalization without representation works, consider a 2010 Oklahoma law, the “Pet Breeders Act,” which, in addition to creating criminal penalties for violating the act, criminalized the violation of “any rule [later] adopted under the [Act].”[39] How voluminous were the subsequently promulgated rules? They exceeded 20 pages with more than 43 sections, highlighting just how much the use of regulatory catchalls can inflate a state’s body of criminal laws.[40]
Fixing the Overcriminalization of America
This report paints an unflattering picture of state criminal law. But there is some light shining through the clouds. Some state legislatures have adopted measures to stem the tide of overcriminalization. The five reforms proposed below—and the accompanying model legislation and executive orders—would build upon these recent legislative successes.
Restore Criminal Intent
One way to protect well-meaning citizens against prosecution for crimes that they unknowingly commit is to ensure that prosecutors meet the same burden of proof for both of the traditional elements of a crime. That is, the government should have to prove criminal intent in prosecuting alleged regulatory offenses—which are not intuitively criminal in nature—just as it is required to do in cases involving more serious offenses.
Fifteen states have adopted default criminal-intent statutes that establish a baseline level of intent that prosecutors must establish to secure a conviction.[41] These default provisions are typically triggered when the criminal statute or regulation in question is silent as to criminal intent.
Unfortunately, even states that have adopted these mens rea rules have sometimes omitted crimes that ordinary citizens are likely to find the least intuitively criminal. For example, Kansas’s default criminal-intent statute applies only to offenses in the state’s criminal code, despite the fact that the criminal code is likely to contain only a minority of the state’s statutory crimes. Kansas and other states should therefore expand their default criminal-intent statutes to apply to offenses listed throughout their entire statutory code.
While including an intent requirement in all criminal statutes may be good policy, legislators may wish to retain the power to create strict-liability offenses in certain cases. Default mens rea laws, such as our proposed model legislation, would not prohibit lawmakers from doing so. Instead, a default criminal-intent statute simply prohibits courts from interpreting statutory silence on criminal intent as the legislature’s desire to create a strict-liability offense. Once such a default is adopted, lawmakers who wish to create a strict-liability offense would have to do so explicitly in the statutory language.
AN ACT TO REESTABLISH MENTAL CULPABILITY AS AN ESSENTIAL ELEMENT OF A CRIMINAL OFFENSE
Sec. 1
1. Except as otherwise provided in this section, a person is not guilty of a criminal offense for which incarceration is statutorily a potential punishment, committed on or after the date of the passage of this Act by both legislative chambers, unless both of the following apply: A. The person’s criminal liability is based on conduct that includes either a voluntary act or an omission to perform an act or duty that the person is capable of performing. B. The person has the requisite degree of culpability for each element of the offense as to which a culpable mental state is specified by the language defining the offense. 2. If the statutory language setting out the elements of a criminal offense explicitly imposes strict criminal liability for the conduct described in the statute, then mental culpability is not required for a person to be guilty of the offense. 3. If a subsection of a statute plainly imposes strict criminal liability for an offense defined in that subsection but does not plainly impose strict criminal liability for an offense defined in another subsection, the offense defined in the subsection without a plain imposition of strict criminal liability should not be inferred to be a strict-liability crime. 4. Statutory silence as to mental culpability (mens rea) with respect to an offense or element of an offense shall not be construed as the legislature’s intent to impose strict criminal liability for any offenses set out therein. 5. If statutory language defining an element of a criminal offense that is related to knowledge or intent or as to which mens rea could reasonably be applied neither specifies mental culpability nor plainly imposes strict liability, the element of the offense is established only if a person acts with intent, or knowledge. A. “Intent” means a desire or will to act with respect to a material element of an offense if both of the following circumstances exist: i. The element involves the nature of a person’s conduct or a result of that conduct, and it is the person’s conscious object to engage in conduct of that nature or to cause that result. ii. The element involves the attendant circumstances, and the person is aware of the existence of those circumstances or believes or hopes that they exist. B. “Knowledge” means awareness or understanding with respect to a material element of an offense if both of the following circumstances exist: i. The element involves the nature or the attendant circumstances of the person’s conduct, and the person is aware that his or her conduct is of that nature or that those circumstances exist. ii. The element involves a result of the person’s conduct, and the person is aware that it is practically certain that his or her conduct will cause that result.
Sec. 2
1. Nothing in this Act shall be construed to alter the state of the law with respect to the legal effect or lack thereof on criminal liability of the voluntary consumption of a substance or compound one knows or reasonably should know may lead to intoxication or impairment.
Expand the Mistake-of-Law Defense
The “mistake-of-law” defense is a legal mechanism through which a defendant who committed a prohibited act can argue that he nevertheless acted in good faith. If successfully invoked, a mistake-of-law defense can rebut the presumption that a defendant knew and understood the law.
Mistake of law is an affirmative defense, i.e., a criminal defendant must advance it to negate legal liability. The defense requires a defendant to establish that he:
(1) erroneously conclude[d] in good faith that his particular conduct [was] not subject to the operation of the criminal law; (2) ma[de] a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded or [sic] under our legal system, to ascertain and abide by the law; [and] (3) act[ed] in good faith reliance upon the results of such effort.[42]
The defendant must also show that “the conduct constituting the offense is neither immoral nor anti-social.”[43]
Traditionally, a mistake-of-law defense has been viable only in limited circumstances: when the law in question had not yet been published; when the defendant relied on an official interpretation of the law by a prosecutor or other applicable official; or when the defendant relied on a subsequently overruled judicial opinion. The proposed model legislation would expand the applicability of the defense. If a defendant “erroneously concludes in good faith” that his conduct is not illegal, the model legislation would allow him to present a mistake-of-law defense to a jury—even if the law in question was already published or he was not relying on a judicial opinion or an official interpretation from a government official.
This sort of expansion would offer well-meaning citizens an important layer of protection against criminal liability for acts committed despite having made a good-faith effort to comply with the law—so long as they could convince a jury of their good faith. The model mistake-of-law defense would not apply to cases involving violence, property destruction, or the possession or distribution of narcotics, thereby minimizing the possibility that the policy would harm public safety.
AN ACT TO ESTABLISH THE CONTOURS AND APPLICABILITY OF THE AFFIRMATIVE DEFENSE OF “MISTAKE OF LAW” IN CRIMINAL CASES
SEC. 1 | “MISTAKE OF LAW” DEFINED
“Mistake of Law” is an affirmative defense[44] that, if proven by a preponderance of the evidence, negates the criminal-intent element of a specific-intent crime.
SEC. 2 | ELEMENTS OF THE DEFENSE
The mistake-of-law defense is a cognizable defense when all of the following elements are established: 1. charges are brought in criminal court; 2. the statutory or regulatory offense(s) in question are not strict-liability offenses, and the state is required to establish criminal intent beyond that to merely perform the act or omission constituting the offense; 3. the defendant erroneously concludes in good faith that his particular conduct is not subject to the operation of criminal law; 4. the defendant makes a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded under our legal system, to ascertain and abide by the law; and A. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, appropriate means are not limited to reliance on official interpretations or judicial decisions, consultation with a licensed attorney, and, where the offense alleged was committed in a business setting, seeking the advice of internal compliance professionals; B. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, enactment and publication of a law or regulation shall not be deemed to negate a mistake of law defense as a matter of law; 5. the defendant acts in good-faith reliance upon the results of such effort.
Recodify the Criminal Law
In North Carolina, lawmakers introduced a bill to establish a “recodification task force.” When the proposed legislation stalled, stakeholders from public-policy organizations and the North Carolina government formed an informal working group that took on the tasks outlined in the proposed legislation. The group has since been formally recognized by the state’s legislature, which passed a bill to deliver to the group requested data and other information.[45]
A recodification task force would reorganize a state’s criminal law into a single, comprehensive code of all criminal offenses. Providing a single source in which all criminal offenses are set out would lower the risk that ordinary citizens acting in good faith unknowingly commit a criminal offense, as well as (likely) improve compliance with the criminal law.
The task force would be free to make recommendations to exclude or include various provisions in the comprehensive code being proposed—consistent with the goal of lowering the transaction costs associated with legal compliance. The comprehensive code proposed by the task force could be amended by, and adopted in whole or in part by, the legislature.
AN ACT TO ESTABLISH THE [STATE NAME] CRIMINAL CODE RECODIFICATION COMMISSION
SEC. 1 | COMMISSION ESTABLISHED
There is established the Criminal Code Recodification Commission (hereinafter “[the] Commission”) within the [state name] Judicial Department’s Office of Court Administration {or equivalent}. SEC. 2 | COMPOSITION
The Commission shall be composed of twenty-one members to be appointed as follows {note: composition may vary based on state constitutional structure, statutory schemes, or political realities}: 1. Four members of the Senate appointed by the President Pro Tempore of the Senate. At least one Senate member must be a member of the minority party at the time of the Commission’s creation. A. Senate members may designate a member of their staff to represent them at meetings of the Commission, but the ability to vote on any matters before the Commission shall be reserved to appointed members. 2. Four members of the House of Representatives appointed by the Speaker of the House of Representatives. At least one House member must be a member of the minority party at the time of the Commission’s creation. A. House members may designate a member of their staff to represent them at meetings of the Commission, but the ability to vote on any matters before the Commission shall be reserved to appointed members. 3. Two members appointed by the Governor. 4. The Lieutenant Governor, or the Lieutenant Governor’s designee, and one additional member appointed by the Lieutenant Governor. 5. Two sitting sheriffs or police department chiefs, of which one shall be appointed by the President Pro Tempore of the Senate, and the other appointed by the Speaker of the House. 6. Seven members appointed by the Chief Justice of the [state name] Supreme Court as follows: A. A sitting superior court judge B. A sitting intermediate appellate court judge C. Two state penitentiary wardens D. A sitting district attorney E. A sitting public defender F. A member of the private criminal defense bar 7. The Chair of the Commission will be selected by the Governor from among the appointed members.
SEC. 3 | DELIVERABLES OF THE COMMISSION The Commission shall produce the following:
1. Within eighteen months from the effective date of this Act, a fully drafted, new, streamlined, comprehensive, orderly, and principled criminal code. 2. Official commentary appended to the new code explaining how it will operate. Said commentary shall identify, explain, and provide justification for changes in current law. 3. An offense grading table appended to the new code grouping all offenses covered by the new code by offense grade. Offenses shall be graded within existing sentencing classes.
SEC. 4 | MANDATE OF THE COMMISSION
In producing deliverables outlined in Sec.’s 3(1)–(3), the Commission shall:
1. Incorporate into the new code all major criminal offenses contained in existing law that the Commission has not chosen to exclude. 2. Include necessary provisions not contained in the current code, such as default mental state requirements as an essential element of criminal liability, a listing of affirmative defenses and their elements, and definitions of offenses and key terminology with corresponding citations to governing precedent when applicable or deemed helpful by the Commission. 3. Exclude from the new code unnecessary, duplicative, inconsistent, or unlawful provisions of current law. Note in commentary whether criminally enforceable provisions of current law that have been excluded from the code should remain available for civil enforcement through the levying of fines, or repealed altogether. 4. Use language and syntactical structure to make the law easier to understand and apply. 5. Ensure that criminal offenses are cohesive, rational, and consistent with one another. 6. Make recommendations regarding whether, and if so, what, limitations should be placed on the ability of administrative boards, agencies, local governments, appointed commissioners, or of other persons or entities to enact rules that will, pursuant to the enabling statute, be eligible for criminal enforcement. 7. Address any other matter deemed necessary by the Commission to carry out its legislative mandate.
Repeal Outmoded, Unnecessary, and Unconstitutional Criminal Laws
Some states have undertaken legislative efforts to clean up their statute books by repealing unnecessary, outmoded, and duplicative criminal offenses. In Kansas, for example, the state established an “Office of the Repealer” in 2011. The primary aim of the office was to review the body of criminal law and continuously flag provisions ripe for repeal, which the legislature could then choose to act upon.[46] In Michigan, Governor Rick Snyder signed, in 2015, a bill repealing a number of outmoded crimes[47]—the legislature’s response to the governor’s call for such reforms earlier that year.[48]
While these efforts are laudable, they do not go far enough, considering the rate at which lawmakers are adding new criminal offenses to the books. One state studied by the Manhattan Institute, however, does offer a fine example of how to undertake a large-scale repeal effort. In 2014, Minnesota’s legislators repealed more than 1,175 crimes in what was dubbed the legislative “unsession.”[49] The unsession was the outgrowth of a push by Governor Mark Dayton to prune unnecessary and outmoded laws piling up on state books.[50]
Dayton persuaded lawmakers to take up a long list of crowd-sourced reform proposals during its short even-year legislative session.[51] States wishing to address overcriminalization should consider using Minnesota’s approach. In addition, states should consider appointing a task force to offer recommendations, which could focus and refine crowd-sourced proposals, as well as facilitate bipartisanship.
The proposed model legislation would not create or mandate a legislative “unsession”—traditional notions of the separation of powers argue against having the executive branch of a state government set the agenda for the legislative branch. Instead, we suggest two mechanisms, legislative resolution and executive order, through which states could create an overcriminalization task force. Such a task force would be charged with reviewing the criminal law with an eye toward identifying provisions ripe for repeal. The legislature could then consider the suggestions of the task force, ideally during a special legislative “unsession.”
A JOINT RESOLUTION TO CREATE THE [STATE NAME] OVERCRIMINALIZATION TASK FORCE, TO PROVIDE FOR THE COMPOSITION OF THE TASK FORCE, AND TO PROVIDE THAT THE TASK FORCE SHALL REPORT ITS FINDINGS TO THE GENERAL ASSEMBLY
Whereas, overcriminalization, defined as the growth of criminal statutes within a state’s code of laws, exists as a phenomenon within the state of ______________; and Whereas, it is in the public interest for the State to establish a ________________ Overcriminalization Task Force to study the presence of the criminal law and how the entirety of the criminal law and state policies affect this population. Now, therefore, Be it enacted by the General Assembly of the State of __________________:
1. There is hereby established the [State Name] Overcriminalization Task Force (hereinafter “task force”) to study and review the scope and application of the criminal law and to examine how the criminal law affects the population of this state. 2. The task force shall consist of thirteen members, composed as follows: A. the Director of the [State Name] Department of Corrections, or his designee, shall serve ex officio and shall be the chairman of the task force; B. twelve members who shall be appointed as follows: i. Six members shall be appointed by the President Pro Tempore of the Senate. Two shall be members of the Senate, at least one of whom shall be a member of the majority political party represented in the General Assembly and at least one of whom shall be a member of the largest minority political party represented in the General Assembly. One shall be a member of the public at large; and ii. Six members shall be appointed by the Speaker of the General Assembly. Two shall be members of the House of Representatives, at least one of whom shall be a member of the majority political party represented in the General Assembly and at least one of whom shall be a member of the largest minority political party represented in the General Assembly. One shall be a member of the public at large; and 3. the task force shall organize as soon as practicable following the appointment of its members and shall select a vice chairperson from among its members. 4. The members of the task force shall be appointed no later than thirty days after the effective date of this act. 5. Vacancies in the membership of the task force shall be filled in the same manner provided by the original appointments. 6. The members shall serve without compensation and may not receive mileage or per diem. The task force may meet and hold hearings at the places it designates during the sessions or recesses of the legislature; and, wherever practicable, the General Assembly shall make meeting space available to the task force upon request. 7. The findings and recommendations of the task force shall be reported to the Governor and the General Assembly no later than twelve months after the initial meeting of the task force. The report shall principally identify the laws the task force recommends to the General Assembly for repeal.
8. The task force shall dissolve immediately after submitting its report to the Governor and the General Assembly.
DRAFT OF EXECUTIVE ORDER ESTABLISHING GOVERNOR’S OVERCRIMINALIZATION TASK FORCE
State of _______________ Executive Department Office of the Governor Executive Order No. 20XX-XX Whereas, overcriminalization, defined as the growth of criminal statutes within a state’s code of laws, exists as a phenomena within the state of ____________________; and Whereas, it is in the public interest for the State to establish a ____________________ Overcriminalization Task Force to study the presence of the criminal law and how the entirety of the criminal law and state policies affect this population. Now, therefore, pursuant to the authority vested in me by the Constitution and Statutes of the State of __________________, I hereby establish the Governor’s Overcriminalization Task Force (“Task Force”) to be composed of ______________ members to include _____________________, appointees from the majority and minority leaders of the Senate and House of Representatives, and representatives from different business sectors and the conservation community, of which I shall designate the chairperson. I hereby direct the Task Force as follows:
SEC. 1 | TASK FORCE DIRECTIVES
1. Task Force Mission: To study and review the body of criminally enforceable rules and regulations and submit a report to the General Assembly identifying those criminal laws and regulations it recommends for repeal.
2. Duties and responsibilities:
A. The Task Force shall evaluate the reports submitted by agencies, pursuant to Section II, that identify current and proposed statutes, rules, regulations, and policies that add new crimes or criminally-enforceable provisions to ________ laws, rules, and regulations. B. The Task Force shall cooperate and coordinate with the appropriate state agencies, as practicable, to identify current and proposed crimes or criminally-enforceable provisions in state laws, rules, and regulations.
C. The Task Force shall conduct public hearings and solicit input from businesses, employers, conservation groups, professional associations, state agencies, and other interested persons and groups to develop its final report. As practicable, the Task Force shall conduct public hearings in local communities around the State.
D. Staff will be designated to assist the Task Force in developing its report. E. The Task Force shall submit its final report on or before ________ XX, 20XX, to the Governor and the members of the General Assembly. FURTHER, I hereby direct all Cabinet agencies and encourage all other executive agencies as follows:
SEC. 2 | AGENCY DIRECTIVES
1. Each agency shall identify its current and proposed statues, rules, regulations, and policies that expand the existing quantity of criminal laws in ________ using the following guidelines:
A. Each agency shall comprehensively review all current and proposed statutes, rules, regulations, and policies in order to assess their effects on the criminal law of ________ to determine whether they are exceedingly vague, duplicitous, antiquated, enforced, proportional to their punishments, and contain reasonable culpability requirements.
B. In evaluating statutes, rules, regulations, and policies, each agency should consider factors to include, but not limited to, their necessity, complexity, efficiency, effectiveness, redundancy, public complaints or comments, short- and long-term effects, impact on all affected persons, both intended and unintended, and unintended negative consequences.
2. Each agency shall submit a written report to the Task Force on or before _____ XX, 20XX, providing detailed recommendations to repeal or amend any provisions that unduly burden businesses and citizens of this State.
3. Each agency is authorized to call upon any department, office, division, or agency of this State to supply it with data and other information, personnel, or assistance it deems necessary to discharge its duties under this Order. Each department, officer, division, or agency of the State is hereby required, to the extent not inconsistent with law, to cooperate with another agency and to furnish it with such information, personnel, and assistance as is necessary to accomplish the purpose of this Order.
4. Each agency shall take care to solicit both written and oral comments from the public, including businesses, employees, professional associations, conservation organizations, and other affected persons or entities as the agency deems appropriate and to consider the views expressed by those parties in any report.
This Order is effective immediately.
GIVEN UNDER MY HAND AND THE GREAT SEAL OF THE STATE OF [STATE NAME], THIS xx DAY OF ____________ 20XX.
Eliminate Criminalization without Representation
In every state studied in the Manhattan Institute’s Overcriminalizing America series, lawmakers have delegated effective criminal lawmaking authority to, among others, executive-branch officials, commissions, and private licensing boards. Such delegation makes legal compliance even more complicated for ordinary citizens.
Moreover, each state that we have examined has a large number of crimes that were never voted on, or even reviewed, by anyone who must answer to voters. Criminalization without representation concentrates power in the hands of unelected officials, undermining political accountability. It also threatens to accelerate the rate of new crime creation.
The proposed model legislation aims to constrain regulators’ power to create crimes without express approval by the legislative branch. The model policy would restrict regulations to the realm of civil enforcement unless and until those regulations survive votes in both chambers of a state’s legislature and are approved by the state’s governor—i.e., unless and until those regulations survive the strictures of bicameralism and presentment.
AN ACT TO END “CRIMINALIZATION WITHOUT REPRESENTATION”
SEC. 1 | DEFINITIONS
1. Regulatory “catchall” provision—A provision in legislation that prescribes penalties (specifically criminal penalties, for the purposes of this legislation) for the violation of a rule, or rules, a regulatory body is authorized to promulgate, prior to the promulgation of such rules. 2. Regulatory body—Any governmental agency, quasi-private body, commissioner, or other official, vested with the authority to promulgate regulations of any sort enforceable by the state of _______________.
3. Rule or regulation—Any prohibition or requirement articulated by a regulatory body and enforceable either civilly or criminally by the state of ______________. 4. Criminal enforcement—Any enforcement action brought by the state for which the target of the enforcement action, if found guilty, can be imprisoned, labeled as a felon or misdemeanant under state law, fined more than $10,000, or prohibited from exercising state or federal constitutional rights, including the rights to vote, keep and bear arms, and deny a law enforcement officer’s request to conduct a search pursuant to the Fourth Amendment to the Constitution of the United States.
5. Rules eligible for criminal enforcement—Any rule promulgated pursuant to a grant of legislative authority that contains a “regulatory catchall” provision by which the rule is covered.
SEC. 2 | BICAMERALISM AND PRESENTMENT REQUIRED
1. As of the effective date of this legislation, no rule or regulation covered by a “regulatory catchall” provision, except those that satisfy the requirements set out in
(2, below) may be criminally enforced. 2. A rule or regulation may be criminally enforced if and only if it has been approved—in the form of a joint resolution subject to an up and down vote—by a simple majority of both houses of the _____________ state legislature, and that resolution has been signed by the Governor. 3. Promulgated rules eligible for criminal enforcement
that have not satisfied the requirements set out in
(2, above) will be restricted to civil enforcement unless and until said requirements are satisfied.
4. If no civil enforcement penalties are set out in the legislation authorizing a promulgated rule eligible for criminal enforcement, the penalties for the violation of said rule are as follows—
A. Upon a finding of guilt by a preponderance of the evidence, a fine not exceeding $150 per violation may be levied. B. Failure to pay any fines levied pursuant to (A, above) can result in additional fines, a finding of contempt of court, or the suspension of a state license related to the offense charged held by the accused.
Conclusion
Building on the Manhattan Institute’s previous findings, this paper lays out the contours of the state-level overcriminalization problem. State statutory and regulatory codes are overflowing with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.
The proposed model legislation and executive order offer a framework for state lawmakers to address the overcriminalization problem. These policies:
Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created
Across the states we have studied, the criminal law tends not to reflect due consideration of whether particular disfavored conduct should be criminalized, rather than dealt with through civil or administrative means; whether it is bad enough to dispense with the long-standing principle that a criminal act requires acting with a guilty mind; and whether the punishment for a given crime fits with parallel offenses, criminal and civil. Such questions can be difficult to answer, especially for the many part-time legislators across the states, constrained by time and resources, and often lacking legal training.
The reforms suggested in this paper implicitly recognize such difficulty—offering protections to criminal defendants acting in good faith, delegating recodification and repeal to focused task forces—while also restoring to the legislature the proper ultimate authority over a government’s awesome power to take away a citizen’s liberty.
Each state is different. Some states have more work to do than others. But we are confident that each state needs reform. It is up to elected state leaders to meet that need with action.
Endnotes
Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds, 2017 Annual Report, July 13, 2017.
“Implementing MACRA,” Health Affairs Policy Brief, Mar. 27, 2017.
Office of Inspector General, U.S. Department of Health & Human Services, “Medicare Hospital Prospective Payment System: How DRG Rates Are Calculated and Updated,” OEI-09-00-00200, Aug. 2001.
Ibid.
Centers for Medicare & Medicaid Services (CMS), “National Health Expenditures.”
Charles Roehrig, “A Brief History of Health Spending Since 1965,” Health Affairs blog, Sept. 19, 2011.
American Medical Association, “RBRVS Overview.”
Congressional Budget Office (CBO), “Factors Underlying the Growth in Medicare’s Spending for Physicians’ Services,” Background Paper #2597, June 2007.
Zirui Song et al., “Medicare Fee Cuts and Cardiologist-Hospital Integration,” JAMA Internal Medicine 175, no. 7 (July 2015): 1229–31.
Medicare Payment Advisory Commission (MedPAC), Report to Congress, “Physician and Other Health Professional Services,” Mar. 2017.
“Implementing MACRA.”
Medicare Access and CHIP Reauthorization Act of 2015, Public Law 114-10.
Institute of Medicine, “Crossing the Quality Chasm: A New Health System for the 21st Century,” Mar. 2001.
Chris Pope, “Medicare’s Single-Payer Experience,” National Affairs, no. 26 (Winter 2016): 2–20.
Kathryn Toone, Natalie Burton, and David Muhlestein, “MACRA in 2017: Overview, Impact & Strategic Considerations of the Quality Payment Program,” Leavitt Partners, Mar. 2017.
Ben Sasse, “House Should Reject Medicare Change,” Politico, Mar. 26, 2015.
CMS, “Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician Focused Payment Models,” Final Rule with comment period, Federal Register 81, no. 214 (Nov. 4, 2016): 77008–831.
CMS, “Medicare Program; CY 2018 Updates to the Quality Payment Program,” Proposed Rule, Federal Register 82, no. 125 (June 30, 2017): 30010–500.
Tim Gronniger et al., “How Should the Trump Administration Handle Medicare’s New Bundled Payment Programs?” Health Affairs blog, Apr. 10, 2017.
Toone, Burton, and Muhlestein, “MACRA in 2017.”
CMS, “The Quality Payment Program.”
MedPAC, Report to Congress, “Physician and Other Health Professional Services,” Mar. 2017.
CMS, “The Merit-Based Incentive Payment System: MIPS Scoring Methodology Overview.”
MedPAC, Report to Congress, “Medicare and the Health Care Delivery System,” June 2017.
MedPAC, “Physician and Other Health Professional Services.”
Eric T. Roberts, Alan M. Zaslavsky, and Michael McWilliams, “The Value-Based Payment Modifier: Program Outcomes and Implications for Disparities,” Annals of Internal Medicine 168, no. 4 (Nov. 28, 2017): 255-65.
See the transcript of the MedPAC public meeting, Oct. 5, 2017, pp. 4, 9; Virgil Dickson, “MedPAC Urges Repealing MIPS,” Modern Healthcare, Oct. 5, 2017.
Kate Bloniarz and David Glass, “Next Steps for the Merit-based Incentive Payment System (MIPS),” MedPAC public report, Oct. 5, 2017.
See the letter from Glenn M. Hackbarth, chairman of MedPAC, to Marilyn Tavenner, administrator, Centers for Medicare & Medicaid Services, “RE: CMS List of Measures Under Consideration for December 1, 2014,” Jan. 5, 2015.
See the transcript of the MedPAC public meeting, Oct. 5, 2017, p. 7.
Niam Yaraghi, “MACRA Proposed Rule Creates More Problems than It Solves,” Health Affairs blog, Oct. 16, 2016.
U.S. Government Accountability Office, “HHS Should Set Priorities and Comprehensively Plan Its Efforts to Better Align Health Quality Measures,” Report to Congressional Committees, GAO-17-5, Oct. 2016.
Robert A. Berenson, “If You Can’t Measure Performance, Can You Improve It?” Journal of the American Medical Association 315, no. 7 (Feb. 16, 2016): 645–46.
Yaraghi, “MACRA Proposed Rule.”
J. Michael McWilliams, “MACRA: Big Fix or Big Problem?” Annals of Internal Medicine 167, no. 2 (July 18, 2017): 122–24.
Roberts, Zaslavsky, and McWilliams, “The Value-Based Payment Modifier.”
Lynn Bar, Tim Gronniger, and Tim Putnam, “CMS’s Big MACRA Surprise—Physicians Will Be Judged Based on Cost in 2018 MIPS Calculation,” Health Affairs blog, Nov. 22, 2017.
Krista Teske, “Your Questions About the 2017 MACRA Final Rule—Answered,” Advisory Board Expert Insight, Jan. 31, 2017.
Bloniarz and Glass, “Next Steps for the Merit-Based Incentive Payment System (MIPS).”
Lawrence P. Casalino et al., “US Physician Practices Spend More than $15.4 Billion Annually to Report Quality Measures,” Health Affairs 35, no. 3 (Mar. 2016): 401–6.
“Table 64: MIPS Proposed Rule Estimate Impact on Total Allowed Charges by Practice Size,” Federal Register 81, no. 89 (May 9, 2016): 28375.
See the transcript of the Med PAC public meeting, Oct. 5, 2017.
Kate Bloniarz and David Glass, “Approaches to MACRA implementation: Balancing MIPS and A-APMs,” MedPAC presentation, Jan. 12, 2017.
Toone, Burton, and Muhlestein, “MACRA in 2017.”
Tara O’Neill Hayes, “Primer: MACRA and Advanced Alternative Payment Models,” American Action Forum, Mar. 30, 2017.
CMS, “Physicians and Health Care Providers Continue to Improve Quality of Care, Lower Costs,” Aug. 25, 2016.
“MACRA: Disrupting the Health Care System at Every Level,” Deloitte Health Policy Brief, 2016.
Maria Castellucci, “CMS Loses Money as Medicare ACOs Remain Risk-Averse,” Modern Healthcare, Nov. 3, 2017.
Ashish Jha, “ACO Winners and Losers: A Quick Take,” An Ounce of Evidence blog, Aug. 30, 2016.
Kristen Barlow, “3 Mandatory Bundles Will Likely Be Canceled, a 4th Scaled Back: What You Need to Know,” Advisory Board at the Helm, Aug. 16, 2017.
François de Brantes, “Medicare’s Bundled Payment Programs Suffer from Fatal Flaws, but There Is a Logical Alternative,” Health Affairs blog, May 9, 2017.
J. Michael McWilliams et al., “Outpatient Care Patterns and Organizational Accountability in Medicare,” JAMA Internal Medicine 174, no. 6 (June 2014): 938–45.
Yena Son and Daniel Kuzmanovich, “Concerned About MACRA? You’re Not the Only One,” Advisory Board Practice Notes, Dec. 8, 2016.
John O’Shea, “Salvaging MACRA Implementation Through Medicare Advantage,” Health Affairs blog, Oct. 16, 2017.
Idem, “As MACRA Implementation Proceeds, Changes Are Needed,” Health Affairs blog, Apr. 21, 2017.
De Brantes, “Medicare’s Bundled Payment Programs Suffer from Fatal Flaws.”
“Physicians Wary of MACRA’s Potential to Hasten the Demise of Independent Practices, per Black Book Survey,” PR Newswire, June 13, 2016.
“2016 Survey of America’s Physicians,” Physicians Foundation, Sept. 21, 2016.
Molly Gamble, “Sebelius: PPACA, Antitrust Law in ‘Constant Tension,’ ” Becker’s Hospital Review, Apr. 9, 2013.
Scott Gottlieb, “House Republicans Should Break the Obamacare Mold on Doctor Pay,” Forbes, Mar. 19, 2015.
Hannah T. Neprash, Michael E. Chernew, and J. Michael McWilliams, “Little Evidence Exists to Support the Expectation That Providers Would Consolidate to Enter New Payment Models,” Health Affairs 36, no. 22 (Feb. 2017): 346-54.
“CMS to Count Participation in MA Towards Alternative Pay Model Calculations,” Inside Health Policy, Nov. 8, 2017.
Katherine Baicker, Michael E. Chernew, and Jacob E. Robbins, “The Spillover Effects of Medicare Managed Care: Medicare Advantage and Hospital Utilization,” Journal of Health Economics 32, no. 6 (Dec. 2013): 1289–1300; Katherine Baicker and Jacob A. Robbins, “Medicare Payments and System-Level Health-Care Use: The Spillover Effects of Medicare Managed Care,” American Journal of Health Economics 1, no. 4 (Fall 2015): 399–431.
Originally published at Cato Institute by Ilya Shapiro and Reilly Stephens | March 14, 2018
Case: Ellison v. US
Can the government convict you of a crime without showing you had any understanding of the wrongdoing? Mark Ellison was convicted without any such showing and is asking the Supreme Court to take his case.
The case arises out of the tumult of 2008. A real estate company called DBSI went under during the Great Recession, like many other real estate companies at the time. But while for many this unhappy moment meant solely financial losses, for Ellison and his codefendants it meant criminal charges. Section 10(b) of the federal securities law outlaws “any manipulative or deceptive device” used to sell securities. Combined with SEC Rule 10(b)-5, this provides the primary avenue by which the government punishes securities fraud.
The government claims that Ellison and his coworkers defrauded DBSI’s customers in selling them the real-estate investment vehicles that ultimately went bust. But the jury found each innocent on most of the charges, convicting only under the “catch-all” provision of Rule 10(b)-5(c), which outlaws any fraud done “willfully”—but according to the Ninth Circuit ‘willfully’ in this context “does not require that the defendant know that the conduct was unlawful.”
This runs contrary to traditional principles of criminal law. Normally crimes require not just a bad act but also a culpable mental state, what lawyers call mens rea. The difference between murder and manslaughter, for example, is typically whether the perpetrator intended to cause the death or not. But too often these days the government has dispensed with or watered down this traditional requirement, exposing more and more citizens to criminal liability for conduct it is less and less clear should be criminalized.
In addition to watering down the mens rea requirement, the court of appeals determined that the threshold for what did or did not rise to the level of fraud depended on an open-ended test of whether a hypothetical reasonable investor might consider the information “important” in making an investment decision. The Supreme Court and most other circuits, however, have maintained that courts must consider whether, after considering the “total mix” of all the information provided in a case-specific context, the piece of information at issue was “material” to an actual investor’s actual investment decision. Following a test of materiality based on whether some theorized investor might possibly sorta-kinda-coulda thought the information was maybe material expands criminal liability past the horizon.
This case represents yet another example of the overcriminalization that has run rampant throughout our legal system. Defense lawyer and Cato adjunct scholar Harvey Silverglate has estimated that each of us unwittingly commits three felonies a day. When criminality is that capricious, the government can exploit it at its whim, punishing those who displease it through selective prosecution. This is an arrangement more befitting a banana republic than the land of the free.
Cato, joined by the Reason Foundation and law professors Julie Rose O’Sullivan, Ira P. Robbins, Jeffrey S. Parker, and Gideon Yaffe, has filed a brief authored by Paul Kamenar supporting Ellison’s petition. The Supreme Court should take Ellison v. United States and begin to roll back the rising tide of overcriminalization that threatens the liberty of every citizen.
Originally published by Cato Institute by Walter Olson | February 16, 2017
Congress and state lawmakers (and where appropriate, the president and executive branch law enforcement officials) should
• review existing law with an eye toward rolling back overcriminalization and replacing criminal penalties with civil sanctions where feasible; • enact reforms such as the model Criminal Intent Protection Act to bolster recognition of mens rea (punishment should ordinarily require a guilty state of mind, not inadvertent noncompliance) as well as the related mistake of law defense in criminal law; • codify the common law rule of lenity (ambiguity in law should be resolved against finding guilt), as Texas joined other states in doing in 2015; • devise safe harbor provisions that enable economic actors to avoid criminal liability by behaving reasonably and in intended compliance with the law; • limit agency discretion to create new crimes without an act of the legislature; • enact guidelines to strengthen judicial oversight of deferred prosecution agreements and nonprosecution agreements (explicit court approval, not the unilateral say‐so of government prosecutors, should be required for appointment of corporate monitors or the extension of time under supervision); • enact asset forfeiture reforms such as Rep. Jim Sensenbrenner’s (R‑WI) Due Process Act, including requiring that conviction be a prerequisite for forfeiture; • review and, where appropriate, reduce or coordinate per‐offense fines and sanctions to avoid levying penalties disproportionate to the gravity of misconduct; • prohibit, as a proposed New Mexico law would do, the allocation of settlement moneys (cy pres) to charities, nonprofits, or advocacy groups not themselves injured; • assign penalties, forfeitures, and settlement proceeds to the public treasury or, where appropriate in certain cases, to private parties who can show specific individual injury from the offense (penalties should not fund particular government agencies in ways that incentivize zealous enforcement or insulate the agencies from appropriations oversight); • prohibit the payment of public lawyers and forensics experts on contingency, that is, in ways dependent on case outcome or the magnitude of penalties (this principle should apply alike to career prosecutors, other staff public lawyers, experts, and outside law firms); existing contingency arrangements should be terminated;) and • impose transparent principles of selection and payment on outside contracting for legal services.
Prosecution: A Climate of Abuse
“The increasing criminalization of corporate behavior in America,” noted The Economist in 2014, “is bad for the rule of law and for capitalism.” In fact, the British weekly noted, prosecution as a means of regulating business in the United States has become “an extortion racket… . The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company… .
“Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people — with souls and bodies — were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs.”
Many abuses arise from prosecutors’ search for publicity and glory. These include splashy raids on offices and “perp walks” for executives, in situations where a simple request to cooperate would have sufficed, and manipulation of the media through leaks and prejudicial publicity.
The most natural way to address prosecutorial abuse might seem to be disciplinary sanctions based on traditional standards of legal ethics and applied by judges or bar panels. The trouble with relying on that solution is that few prosecutions of large businesses eventuate in trial before a judge. When a business does put up a fight, it sometimes wins big. In 2016, after the Department of Justice (DoJ) indicted the FedEx Corporation on charges that it had knowingly done business with illegal pharmacies, FedEx refused to settle; once before a judge, DoJ’s case collapsed in spectacular fashion and it dropped the charges midtrial. Much more often, however, businesses faced with a doubtful or overreaching prosecution take their lawyers’ advice and fold their hands and try to get the best possible settlement. For businesses based on trust or regulatory permission, the costs and risks of defying federal law enforcement — legal, reputational, and otherwise — are just too high. The government has the upper hand. That is one reason lawmakers need to step in.
Overcriminalization and the Need for Clear and Compliable Law
There are now more than 4,000 federal criminal offenses, up from approximately 165 in 1900, 2,000 in 1970, and 3,000 in 1982, along with hundreds of thousands of regulations backed up by criminal sanction.
Under the rule of law, citizens should be able to arrange their actions so as to avoid the commission of crimes. Yet the proliferation of highly technical laws, many going beyond the prohibition of intrinsically wrongful acts, makes it more likely that even a careful business with thousands of employees will commit some violations — especially if criminal infraction of regulations can be assessed without reference to mens rea (i.e., guilty intent).
As Sen. Ted Cruz (R‑TX) has written, “Congress should enact legislation that requires the government to prove the defendant knowingly violated the law — or that, at least, allows a ‘mistake of law’ defense — for certain classes of crimes that have no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the government has criminalized non‐blameworthy conduct for regulatory purposes, ignorance of the law should be a valid defense to criminal liability.”
Four Outrageous Business Prosecutions
• “When I got there, there were people in SWAT attire that evacuated our entire factory.” Thirty federal agents raided the headquarters of Nashville’s legendary Gibson Guitar, carting away a fortune in wood and instruments and interrogating staff without benefit of a lawyer. The charge was that the company had used small quantities of imported wood without doing enough to ascertain suppliers’ compliance with a federal law called the Lacey Act. Gibson’s chief executive officer — who “had not received so much as a postcard telling the company it might be doing something wrong” — got a letter the next day warning him that if he so much as touched any guitar left in the plant he could be charged with a separate federal offense, with possible jail time, for each “violation.” After much press coverage sympathetic to the company, the feds settled for a relatively low $300,000, a sum far below what Gibson would have been likely to pay in legal defense, and returned the seized instruments. • The federal government extracted more than a billion dollars from Toyota in a settlement, even though its own engineers at the National Highway Traffic Safety Administration cleared the Japanese automaker of charges that its cars were subject to runaway acceleration. The penalties were mostly premised on minor regulatory infractions unrelated to any injuries or accidents. The Department of Justice’s press announcement employed language suggesting that the problem of mechanical acceleration had been real, though Washington had good reason to know better. • The federal government and various states, notably New York, launched enforcement actions against major banks whose actions, it was alleged, had helped propel the mortgage bubble and crash of 2008. No one really knew, and no court ever decided, whether the charges were true or what a suitable penalty level might be. When the dust settled, major banks had agreed to pay record settlements, some going to investors and consumers, but with hundreds of millions also going to nonprofit organizations that the various law enforcement officials saw as worthy causes — which, in the case of the Obama administration and the attorney general of New York, happened also to be close political allies. • Several small family‐owned retailers, including a Maryland dairy farm, a Detroit‐area grocery, and a North Carolina convenience store, violated the little‐known federal “structuring” law, which prohibits depositing money into banks in sums under $10,000 so as not to trigger a paperwork filing to the government, even when no tax or other laws are being evaded in the process. Federal agents seized the families’ bank accounts. With volunteer legal help, and amid public outcry, all three businesses managed to get their money back. But many other small businesses swept up by the same law, sometimes unable to pay lawyers because of the freeze on their assets, had by that time capitulated to large forfeitures.
The situation is even worse when laws are so vague that even reading them does not give fair notice of what they prohibit. Courts are inconsistent about applying the “rule of lenity” (ambiguities should be resolved against finding guilt) and the “void for vagueness doctrine” (laws can fail constitutional muster if they leave too much doubt about what they prohibit). As a result, certain areas — including federal mail and wire fraud, “honest services” fraud, antitrust law, and securities law — have proved particularly resistant to clarification.
In recent years, the U.S. Department of Justice has also sought to expand something called the “responsible corporate officer doctrine.” That doctrine allows the government to hold executives criminally liable for the sins of the corporation generally, even when those executives have not been shown to personally hold a guilty state of mind. Although the doctrine somehow passed muster at the U.S. Supreme Court in the cases of United States v. Dotterweich (1943) and United States v. Park (1975), it is ripe with potential for injustice.
Settlements and Slush Funds
Deferred prosecution agreements (DPAs) and their close relatives, nonprosecution agreements (NPAs), have become a major tool of white‐collar prosecution in recent years. Typically, in exchange for avoiding trial, a business defendant agrees to some combination of cash payment, agreement to change behavior, and submission to future oversight by DoJ. Often, DoJ assigns “monitors” with broad, vaguely defined powers to oversee the affairs of defendant companies and report back to Washington on an ongoing basis.
NPAs at the federal level date back only to 1992. But they have multiplied rapidly, from 1 or 2 a year in the nineties to more than 30 a year during the Obama administration. Since 2010, 16 of the largest U.S. businesses have come under Department of Justice supervision, with tens of billions of dollars extracted in settlements.
Notably, in these agreements, a business defendant may pledge to alter its future course of action in ways that a court would never have ordered had the case gone to trial but that the government is interested in extracting as concessions. These deals may have the effect, or even the aim, of helping or hurting third parties who have the ear of the government, such as customers or competitors of the targeted defendant.
“Without any adjudication to establish wrongdoing and without any judicial oversight, businesses have agreed through these settlements to remove or replace key officers and directors; to change sales, marketing, or compensation plans; and to appoint new officers or independent ‘monitors’ reporting to prosecutors but paid by the companies,” write James Copland and Isaac Gorodetski. The two argue that this process adds up to a “shadow regulatory state” lacking many of the administrative law protections of the visible regulatory state. Appointed monitors, in particular, can wield ill‐defined but wide‐ranging power with little accountability if it is put to heavy‐handed use.
What to do? The United Kingdom took an early lead with its 2013 Crime and Courts Act, which, among other provisions, directs judges to determine that the provisions of DPA equivalents are “fair, reasonable, and proportionate.” In the U.S. Congress, a proposal called the Accountability in Deferred Prosecution Act of 2014 attempted to pursue similar principles. Much more is needed if U.S. law is to catch up with the institutional reality of a Department of Justice that has become the nation’s most powerful business regulator without anyone’s having designed it that way.
At base, the case for civil liberties in the business world is much the same as the case for civil liberties generally. Businesses deserve impartial prosecution in the interests of justice, not merely scoring wins for the government; speedy trial and clear exposition of charges; determination of guilt on an individualized, not group, basis; no excessive punishment; protections against baseless search and seizure; and, in general, the full range of due process protections. The marketplace, like the rest of American society, deserves the full protections of the U.S. Constitution.
Frank, Theodore H., “Cy Pres Settlements.” Testimony before the House Judiciary Committee, Subcommittee on the Constitution and Civil Justice Examination of Litigation Abuse, 113th Cong., March 13, 2013.
Shapiro, Ilya, and Randal John Meyer. “Obama’s Weaponized Justice Department” (responsible corporate officer doctrine). National Review, October 30, 2015.
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.
Ms. Ruelas’s case is part of a trend of “overcriminalization,” a term describing the rapid expansion, and increased complexity, of criminally enforceable rules and regulations regarding conduct that is not intuitively wrong.
At the federal level alone, there are an estimated 300,000 criminally enforceable rules and regulations. The five states we have studied to date in our “Overcriminalizing America” research project average more than 570 percent more sections in their criminal codes than in the Model Penal Code, the template established by leading legal scholars that forms the criminal-law basis for most states, and they are enacting, on average, more than 42 new crimes on the books, each and every year. More than three-fourths of these new crimes have been scattered around state statutes outside the criminal codes themselves. States also regularly outsource the creation of crimes to unelected commissioners, administrative agencies and even private licensing associations.
In 2013, California enacted the California Homemade Food Act, intended to help what the law called “cottage food operations” but still ensnared Ms. Ruelas. Any violation of the law’s multiple provisions — it numbers almost 7,000 words — is a misdemeanor. The law criminalizes food sales for anyone who has not registered paperwork with government authorities, and it prohibits such operations in kitchens that are also used to prepare family meals or wash dishes.
Clearly, Ms. Ruelas violated the express provisions of the act — even though she claims she meant to do nothing wrong. Traditionally, under American law and the British law upon which it is based, the state had to prove a “guilty mind” to prosecute an individual of a crime. Today, however, states regularly prosecute individuals for crimes that specify no necessary criminal intent. Fifteen states follow the Model Penal Code in mandating a default criminal-intent requirement where statutes are silent, but others, including California, assume that if the legislature fails to specify any level of criminal intent, no showing of intent is required.
Individuals acting in good faith like Mariza Ruelas should be able to go through daily life without having to worry about ending up behind bars. California could pursue steps to make its criminal law more manageable by enacting a criminal-intent default standard, requiring legislative votes on any regulatory crimes, or following the lead of other states that have held special legislative sessions or creating commissions to repeal outdated crimes and reform the criminal law. Special attention should be paid to the occupational licensing space.
While not entirely curative, adopting these reforms would represent a meaningful first step toward addressing the overcriminalization problem. Until then, well-meaning citizens like Mariza Ruelas will remain at risk of imprisonment for conduct as seemingly innocent as selling some homemade food for a few extra bucks.
James R. Copland is a senior fellow and Rafael A. Mangual a legal-policy project manager for the Manhattan Institute for Policy Research.
According to attorney Harvey Silverglate, the average American inadvertently commits three arguable felonies in a given day. How is possible that Americans could commit so many felonies without knowing it?
Consider this: The U.S. Code—the consolidation of our country’s laws and regulations, broken down into sections such as agriculture (Title 7), banking (Title 11), public lands (Title 43), and more—contains over 4,500 federal crimes and more than 300,000 federal regulations that carry criminal penalties. Rather than being organized together, those crimes and regulations are scattered throughout the code’s 54 titles. Additionally, the states have their own criminal statutes and regulations that carry criminal penalties.
Many of these statutes and regulations criminalize ordinary activities that would not have historically been considered criminal, like shipping lobsters in the wrong packaging or collecting arrowheads from your campground.
While ignorance of the law has never been a sound defense, the sheer number of laws currently on the books—and the fact that crimes are poorly defined and scattered throughout the code—makes it unreasonable to expect the average citizen to be aware of all the activities that could be considered criminal.
Even more troubling is the growing number of statutes and regulations that do not require the government to prove criminal intent in order to obtain a conviction. Historically, a crime consisted of both a guilty act (actus reus) and a guilty state of mind (mens rea). But the absence of an intent requirement enables the criminal prosecution of people who have committed acts that are not commonly considered criminal without the necessary level of intent.
Overcriminalization and prosecution without proof of criminal intent erode the rule of law that protects individual liberties and makes the United States an example to many other nations.
New Mexico has distinguished itself as a leader on criminal justice reform by revising its civil asset forfeiture practices. But there is more work to be done. Examining New Mexico’s approach to criminal intent could further the state’s reform efforts by increasing the effectiveness and justness of its criminal justice system.
Criminal justice reform was the center of focus in the Land of Enchantment last week, as the Charles Koch Institute joined with the Rio Grande Foundation in Albuquerque to discuss the negative implications of overcriminalization in New Mexico. Also participating were experts from the National Association of Criminal Defense Lawyers and the Buckeye Institute, as well as Bobby Unser, a car racing legend who won the Indianapolis 500 three times. All were eager to talk about the role of criminal intent in the justice system.
“At the federal level alone, there are more than 4,400 criminal laws and an estimated more than 300,000 criminal regulations. New Mexico’s legal code adds many more to that tally. There are now so many laws, we cannot help but violate some of them,” explained Paul Gessing, president of the Rio Grande Foundation. Traditionally, crimes have consisted of both a guilty act (actus reus) and a guilty state of mind (mens rea). But, Gessing argued, “Over time, legislators have increasingly forgotten about that second part. By not requiring criminal intent as part of the law, it does not matter that you did not know that you were committing a crime. It does not matter that you did not mean to commit a crime.”
For Bobby Unser, this lack of consideration for criminal intent is personal. In 1996, Unser and a friend were lost after a blizzard interrupted their snowmobile trek. After two days trapped in the mountains, the men were rescued; but when Unser attempted to recover his snowmobile, the National Forest Service charged him with having illegally ridden in a protected wilderness area—despite the fact that Unser had been lost and blinded by snow. “Just going to the Supreme Court … cost [the prosecution] more than a million dollars,” Unser told the audience as he recounted their legal battle. The result of the government’s insistence? A conviction carrying a total fine of $75.
Unser’s story is unfortunately not uncommon in the contemporary justice system, observed Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. “The intent requirement in a criminal statute is the moral anchor of our law. That’s the fundamental concept that we have to keep our eye on,” Reimer said. Reimer argued that the absence of mens rea requirements in criminal statutes is particularly harmful because of the stigma a criminal conviction carries compared to civil suits. “When you are prosecuted criminally, you not only have to bear the tremendous expense of defending yourself, but look at what is at stake—your property, your reputation, your future, your freedom.”
Robert Alt, president and CEO of the Buckeye Institute, explained that Ohio has been a pioneer in tackling overcriminalization, and he sees a path for New Mexico to follow suit. “Criminal offenses are often thrown into legislation like Christmas ornaments,” Alt said. But under a new law in Ohio, statutes that do not include a clear criminal intent requirement are automatically void. After seeing the reform replicated in Michigan, Alt said he was most pleased that the issue “was bringing together a diverse coalition.”
“This is not a binary thing,” argued Vikrant Reddy, senior research fellow at the Charles Koch Institute. “You can do something intentionally, you can do something recklessly, you can do something negligently, or you can do something with no knowledge whatsoever. … All we want is to be stronger about including these levels into a law,” Reddy told the audience.
Ultimately, Gessing remains hopeful that change is possible for the criminal justice system: “Last year, New Mexico made great strides to improve our criminal justice system by reforming our civil asset forfeiture laws. While there is more work to be done to make that reform a reality, we also have the opportunity to think bigger and work to protect all of our rights.”
In order to explore such opportunities, the Charles Koch Foundation invites proposals for research on this topic and others related to criminal justice and policing reform.
Originally published at Cato Institute by Adam Bates | November 19, 2015
Case: Wellcare/Farha v. US
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.
A recent op-ed in The Washington Times illustrates the point, using a recent Medicaid fraud case that is currently in front of a federal appeals court:
Here’s a quiz: Which of the following is a federal crime: (a) A hamster dealer needlessly tilting a hamster’s cage while in transit; (b) subliminally advertising wine; or (c) selling a fresh steak with paprika on it?
Give up? The answer: all of the above.
Right now, there are approximately 4,500 federal criminal statutes and 300,000 administrative regulations that can be punished with imprisonment — and the list keeps growing. This is an invitation for our government to over-prosecute. Too often, federal prosecutors are accepting that invitation and rejecting more measured and effective administrative and civil remedies.
[…]
In a case that was recently argued before a federal appeals court, executives at WellCare, a managed health care company in Florida, were prosecuted based on their reasonable interpretation of a Florida statute. Federal prosecutors, however, disagreed with the company’s interpretation, even though Florida never issued any regulations contradicting the executives’ reading of the law.
The legal framework WellCare operated in was complex. In a nutshell, Florida’s Medicaid program required managed care companies to report expenses they paid for providing behavioral health care — like mental health services. If the company did not spend at least 80 percent of the premiums they received, they had to return some of the premium dollars to the state. The executives at WellCare read Florida’s requirements as allowing them to classify as expenses the money that WellCare paid to its subsidiary that actually provided all the services.
Florida never clarified the law to say whether this was allowed or not, so WellCare did what businesses do — it consulted a lawyer. And WellCare’s lawyers — both in-house and independent outside counsel — said that the way they were reading the law was reasonable. Other companies providing these services under Florida’s Medicaid program read the law in a similar way. Admittedly, WellCare’s interpretation made the company more money, but, of course, making money is what a corporation ought to do.
Federal prosecutors disagreed and brought criminal charges against its executives. The prosecutors argued that WellCare lied when it sent in expense forms reflecting its reading of the law. At trial, even the government’s witnesses agreed that WellCare’s interpretation of the law made sense. And because this complicated question of how to read a technical Florida health care law was improperly left to the jury instead of the judge, the executives were convicted after a month of stalled deliberations. The company’s reasonable interpretation of a complex law — which was vetted by lawyers — was no sanctuary from a conviction for the company’s executives.
The executives were sentenced to prison up to three years. Yet another company that used the same accounting method was only sued for breach of contract and didn’t even have to pay back any money to Florida.
A federal appeals court has a chance to correct this and uphold a firmly established principle of criminal law: Where a citizen reasonably interprets complex regulatory law, a judge — not a jury — should throw out the case.
Whether prosecutors accuse you of violating Honduran lobster-packing laws even when the Honduran courts insist you didn’t, or prosecute you for assuming that a gun license from one state would be valid in a neighboring state, far too many non-dangerous people end up in prison simply because their reasonable interpretation of the law differs with that of the government.
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.
Here’s why this is important:
We’re a nation of laws, Mr. President. We’re supposed to be guided by the rule of law. Our criminal law—indeed, the very idea that it’s proper to brand some conduct, and some people, as criminal—is predicated on the notion that individuals know the law and are able to choose whether or not to follow it. If, as I have suggested, and as many scholars agree, we live in a country where much otherwise benign conduct has been labeled criminal, and where decent, honorable citizens can become criminals through no fault or intent of their own, then we have a real problem on our hands. Our criminal laws should be aimed at protecting our communities and keeping bad influences off our streets, not tripping up honest citizens.
On mens rea specifically:
Without adequate mens rea protections—that is, without the requirement that a person know his conduct was wrong, or unlawful—everyday citizens can be held criminally liable for conduct that no reasonable person would know was wrong. This is not only unfair; it is immoral. No government that purports to safeguard the liberty and the rights of its people should have power to lock individuals up for conduct they didn’t know was wrong. Only when a person has acted with a guilty mind is it just, is it ethical, to brand that person a criminal and deprive him of liberty.
And on the centrality of mens rea reform for overcriminalization reform:
I look forward to working with my colleagues on this important legislation and urge all of them to give it their support. Any deal on sentencing, Mr. President, and any package of criminal justice reforms, must include provisions to shore up mens rea protections. In fact, Mr. President, I question whether a sentencing reform package that does not include mens rea reform would be worth it. And I am not alone. Many members of the overcriminalization coalition—members who helped lay the key intellectual and political groundwork for the negotiations now underway—believe strongly that any criminal justice reform bill that passes this body must include mens rea reform. I agree.
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.
This is both surprising and disappointing given that mens rea reform was a consistent theme throughout the year-long set of hearings conducted by the U.S. House of Representatives Committee on the Judiciary’s Over-Criminalization Task Force. During the task force’s first hearing, when Subcommittee Chairman James Sensenbrenner (R–WI) asked the four witnesses (former Deputy Attorney General George Terwilliger, then-Chairman of the American Bar Association’s Criminal Justice Section William Shepherd, then-President of the National Association of Criminal Defense Lawyers Steven Benjamin, and the author) to name their top priority to address overcriminalization, each said mens rea reform.[3] The task force subsequently devoted an entire hearing to the issue.[4]
One of the greatest safeguards against overcriminalization—the misuse and overuse of criminal laws and penalties to address societal problems—is ensuring that there is an adequate mens rea requirement in criminal laws. While sentencing reform addresses how long people should serve once convicted, mens rea reform addresses those who never should have been convicted in the first place: people who engaged in conduct without any knowledge of or intent to violate the law and that they could not reasonably have anticipated would violate a criminal law. Any reform legislation should address and improve the problems with current law pertaining to mens rea standards as well as sentencing and other areas in need of reform.
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Mens Rea Reform Is a Bipartisan Issue
Prominent Republican and Democratic members of the Over-Criminalization Task Force seemed to agree on the need for mens rea reform. For instance, Republican Chairman Sensenbrenner stated that “[t]he lack of an adequate intent requirement in the Federal Code is one of the most pressing problems facing this Task Force….”[5] Lending his support to the issue, Ranking Member Robert “Bobby” Scott (D–VA) stated:
Themens rearequirement has long served as an important role in protecting those who did not intend to commit a wrongful act from prosecution or conviction…. Without these protective elements in our criminal laws, honest citizens are at risk of being victimized and criminalized by poorly crafted legislation and overzealous prosecutors.[6]
Similarly, during a hearing about the scope of regulatory crimes, Representative John Conyers (D–MI) stated:
First, when good people find themselves confronted with accusations of violating regulations that are vague, address seemingly innocent behavior and lack adequatemens rea, fundamental Constitutional principles of fairness and due process are undermined…. Second,mens rea, the concept of a “guilty mind,” is the very foundation of our criminal justice system.[7]
Following completion of the task force’s hearing, the Democratic members of the task force and the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations issued a report in which they stated:
Federal courts have consistently criticized Congress for imprecise drafting of intent requirements for criminal offenses…. It is clear that the House and Senate need to do better. We can do so by legislating more carefully and articulately regardingmens rearequirements, in order to protect against unintended and unjust conviction. We can also do by ensuring adequate oversight and default rules when we fail to do so.[8]
What Is Mens Rea, and Why Is Reform Needed?
Heritage scholars have written about the need for mens rea reform for some time,[9] and that need is no less pressing today. As former Heritage Senior Legal Research Fellow Paul Rosenzweig stated:
From its inception, the criminal law expressed both a moral and a practical judgment about the societal consequences of certain activity: For an act to be a crime, the law required that an individual must either cause (or attempt to cause) a wrongful injury and do so with some form of malicious intent. In other words, the definition of a crime requires two things: anactus reus(a bad act) andmens rea(a guilty mind). At its roots, the criminal law did not punish mere bad thoughts (intentions to act without any evil deed) or acts that achieved unwittingly wrongful ends but without the intent to do so. The former were for resolution by ecclesiastical authorities, and the latter were for amelioration in the civil tort system.[10]
There are different mens rea standards providing varying degrees of protection to the accused (or, depending on your perspective, challenges for the prosecution). The following recitation of the different mens rea standards is somewhat broad and simplified, and courts often differ in how they define those standards, which can make a huge difference in close cases.[11]
The standard that provides the highest level of protection to an accused would be “willfully,” which essentially requires proof that the accused acted with the knowledge that his or her conduct was unlawful.
A “purposely” or “intentionally” standard would require proof that the accused engaged in conduct with the conscious objective to cause a certain harmful result.
A “knowingly” standard provides less protection, with how much less depending to a great extent on how that word is defined. Some courts have defined the term “knowingly” to mean that the prosecution must prove (1) that the accused was aware of what he was doing (meaning he was not sleepwalking or having a psychotic episode or something of that nature) and (2) that he was aware to a practical certainty that his conduct would lead to a harmful result; other courts have defined the term to require only the former.
Yet another mens rea standard would be “recklessly” or “wantonly,” which would require proof that the accused was aware of what he was doing; that he was aware of the substantial risk that such conduct could cause harm; and that, despite this knowledge, he acted in a manner that grossly deviated from the standard of conduct that a reasonable, law-abiding person would have employed in those circumstances.
Another standard that does not offer much protection at all would be “negligently,” which requires proof that the accused did not act in accordance with how a reasonable, law-abiding person would have acted in those circumstances. “Negligently” is often utilized in connection with criminal statutes that define mens rea based on what a defendant “reasonably should have known.” Negligence is a term traditionally used in tort law and is extremely ill-suited to criminal law. Arguably, negligence is not a mens rea standard at all, since someone who simply has an accident by being slightly careless can hardly be said to have acted with a “guilty mind.”
Today, nearly 5,000 federal criminal statutes are scattered throughout the 51 titles of the U.S. Code,[12] and buried within the Code of Federal Regulations, which is composed of approximately 200 volumes with over 80,000 pages, are an estimated 300,000 or more (in fact, likely many more) criminal regulatory offenses[13] or so-called public welfare offenses. In fact, it is a dirty little secret that nobody, not even Congress or the Department of Justice, knows precisely how many criminal laws and regulations currently exist.[14] Many of these laws lack adequate, or even any, mens rea standards—meaning that a prosecutor does not even have to prove that the accused had any intent whatsoever to violate the law or even knew he was violating a law in order to convict him. In other words, innocent mistakes or accidents can become crimes.
There are, of course, certain kinds of crimes such as murder, rape, arson, robbery, and fraud, which are referred to as malum in se offenses (Latin for “wrong in itself”), that are clearly morally opprobrious. In dealing with such crimes, it is completely appropriate—indeed necessary—to bring the moral force of the government to bear in the form of a criminal prosecution in order to maintain order and respect for the rule of law.
Some criminal statutes and many regulatory crimes, however, do not fit into this category. Such crimes are known as malum prohibitum (Latin for “wrong because prohibited”). This category of offenses would not raise red flags to average citizens (or even to most lawyers and judges) and are “wrongs” only because Congress or regulatory authorities have said they are, not because they are in any way inherently blameworthy.
In the case of regulations, the matter is even more complicated. Unlike malum in se offenses, which are always wrong and always prohibited absent a limited set of morally justified and well-recognized exceptions (such as a legitimate claim of self-defense in a murder case), regulations allow conduct, but they circumscribe when, where, how, how often, and by whom certain conduct can be done, often in ways that are hard for the non-expert to understand or predict. Such regulatory infractions are enforced and penalized through the same traditional process that is used to investigate, prosecute, and penalize rapists and murderers, even though many of the people who commit such infractions are unaware that they are exposing themselves to potential criminal liability by engaging in such activities.[15]
In 2001, in Rogers v. Tennessee,[16] the Supreme Court of the United States cited “core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct.” The threat of unknowable, unreasonable, and vague laws—all of which pertain to one’s ability to act with a “guilty mind”—troubled our Founding Fathers as well. In Federalist No. 62, James Madison warned: “It will be of little avail to the people that laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood…[so] that no man who knows what the law is today, can guess what it will be like tomorrow.”[17] There is a serious problem when reasonable, intelligent people are branded as criminals for violating laws or regulations that they had no intent to violate, never knew existed, and would not have understood applied to their actions even if they had known about them.
The relationship between criminal law and administrative law dates back to the turn of the 19th century, when Congress established federal administrative agencies to protect the public from potential dangers posed by an increasingly industrialized society and a regulatory framework that included both civil and criminal penalties for failing to abide by the rules those agencies promulgated. Such regulations cover such aspects of our lives as the environment around us, the food we eat, the drugs we take, health, transportation, and housing, among many others. As the administrative state has grown, so too has the number of criminal regulations.
There are, however, important differences between criminal laws and regulations, the most important of which is that they largely serve different purposes.[18] Criminal laws are meant to enforce a commonly accepted moral code that is set forth in language the average person can readily understand[19] and that clearly identifies the prohibited conduct, backed by the full force and authority of the government. Regulations, on the other hand, are meant to establish rules of the road (with penalties attached for violations of those rules) to curb excesses and address consequences in a complex, rapidly evolving, highly industrialized society. This is why they are often drafted using broad, aspirational language designed to provide agencies with the flexibility they need to address health hazards and other societal concerns and to respond to new problems and changing circumstances, including scientific and technological advances.
But while large, heavily regulated businesses may be able to keep abreast of complex regulations as they change over time to adapt to evolving conditions, it is less likely that individuals or small businesses will be able to do so. Such traps for the unwary can have particularly dire consequences if criminal penalties are attached to violations of such regulations.
There is a significant difference between regulations that carry civil or administrative penalties for violations and those that carry criminal penalties. People caught up in the latter may find themselves deprived of their liberty and stripped of their rights to vote, sit on a jury, and possess a firearm, among other penalties that simply do not apply when someone violates a regulation that carries only civil or administrative penalties.
There is also a unique stigma that is associated with being branded a criminal. A person stands to lose not only his liberty and certain civil rights, but also his reputation—an intangible yet invaluable commodity, precious to entities and people alike, that once damaged can be nearly impossible to repair. In addition to standard penalties that are imposed on those who are convicted of crimes, a series of burdensome collateral consequences often imposed by state or federal laws can follow a person for life.[20] For businesses, just being charged with violating a regulatory crime can sometimes result in the “death sentence” of debarment from participation in federal programs.[21]
As is the case with Congress, regulators have seemingly succumbed to the temptation to criminalize any behavior that occasionally leads to a bad outcome.[22] Such individuals, acting out of an understandable desire to protect the public from environmental hazards, adulterated drugs, and the like, believe it is appropriate—indeed, advantageous—to promulgate criminal statutes and regulations with weak mens rea standards or with no mens rea standards at all (so-called strict liability offenses) in order to prosecute and incarcerate those who engage in conduct, albeit perhaps negligently or totally unwittingly, that causes harm to the public. They will cite to the fact that, while a number of commentators have criticized strict liability criminal provisions,[23] the Supreme Court of the United States has upheld the constitutionality of such crimes on several occasions.[24] Such individuals believe, or at least fear, that insisting upon robust mens rea standards in our criminal laws will give a “pass” to those who engage in conduct that harms our environment—most likely, in their view, wealthy executives working for large, multinational corporations.
This argument is misplaced. This is not to deny that bad outcomes occasionally do occur or to suggest that those who engage in conduct that causes harm should not be held accountable. Rather, the appropriate question is how they should be held accountable.
There are dozens, perhaps over a hundred, sites being operated and controlled by one entity that are contaminated with hazardous substances and are on the Environmental Protection Agency’s Superfund List. Should the operators of these sites be prosecuted? Maybe so, but such an outcome is highly unlikely: These sites are operated by the Department of Defense.[25]
In August 2015, employees at a large entity engaged in conduct that caused millions of gallons of contaminated waste water (which stings when you touch it) containing heavy metals, including lead, arsenic, mercury, cadmium, iron, zinc, and copper, to surge into Colorado’s Animas River. It is feared that this could eventually affect Mexico, Utah, and the Navajo nation. New Mexico Governor Susana Martinez surveyed the damage caused by this toxic brew and said, “The magnitude of it, you can’t even describe it. It’s like when I flew over the fires, your mind sees something it’s not ready or adjusted to see.” Should the miscreants who caused this disaster be slapped in irons and branded felons? Again, such an outcome is not likely: This mishap was caused, no doubt unwittingly, by a trained hazmat team from the EPA.[26]
Why Congress Should Act
It is unavoidable that bad outcomes will occur from time to time, whether through willfulness, negligence, or sheer accident; however, the intent of the actor should make a difference in whether that person is criminally prosecuted or dealt with, perhaps severely, through the civil or administrative justice systems. As Oliver Wendell Holmes, Jr., who was later appointed to the Supreme Court, once observed, “Even a dog distinguishes between being stumbled over and being kicked.”[27]
The notion that a crime ought to involve a purposeful culpable intent has a solid historical grounding. In 1952, in Morissette v. United States, the Supreme Court stated:
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.[28]
Some people or entities intentionally pollute our air and water or intentionally engage in other conduct knowing it will cause harm, in which case criminal prosecution may be entirely appropriate. However, if somebody or some entity unwittingly does something that results in harm, say, to the environment or to another person, there is no reason why it cannot be dealt with (even harshly) through the administrative or civil justice systems. This would help to remedy the problem and compensate victims without saddling morally blameless individuals and entities for life with a criminal conviction.
Just this past term, in Elonis v. United States, the Supreme Court emphasized the need for an adequate mens rea requirement in criminal cases. In that case, the Court reversed a man’s conviction for violating 18 U.S.C. §875(c) by transmitting threatening communications after he posted some deeply disturbing comments about his estranged wife (and others, including former co-workers) on his Facebook page that she quite reasonably regarded as threatening.[29]
The Court noted that while the statute clearly required that a communication be transmitted and contain a threat, it was silent as to whether the defendant must have any mental state with respect to those elements and, if so, what that state of mind must be. The Court stated that “[t]he fact that the statute does not specify any required mental state, however, does not mean that none exists” and, quoting from Morissette, observed that the “‘mere omission from a criminal enactment of any mention of criminal intent’ should not be read ‘as dispensing with it.’”[30]
The Court, citing to four other cases in which it had provided a missing mens rea element,[31] proceeded to read into the statute a mens rea requirement and reiterated the “basic principle that ‘wrongdoing must be conscious to be criminal.’”[32] The Court focused on the actor’s intent rather than the recipient’s perception: “Having the liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—‘reduces the culpability on the all-important element of the crime to negligence.’”[33] While the Court declined to identify exactly what the appropriate mens rea standard is under that statute and whether recklessness would suffice, it certainly recognized that a defendant’s mental state is critical when he faces criminal liability and that when a federal criminal statute is “silent on the required mental state,” a court should read the statute as incorporating “that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”[34]
If it were a guarantee that courts would always devise and incorporate an appropriate mens rea standard into every criminal statute when one was missing, there might be no need for Congress to do so. As the Elonis Court noted, however, there are exceptions to the “‘general rule’…that a guilty mind is ‘a necessary element in the indictment and proof of every crime.’”[35] Despite the Elonis Court’s recent warning about the need to interpret mens rea requirements to distinguish between those who engage in “wrongful conduct” and those who engage in “otherwise innocent conduct,” courts (including the Supreme Court) on occasion have upheld criminal laws lacking a mens rea requirement based on a presumption that Congress must have deliberated and made a conscious choice to create a strict liability crime.[36]
Although this is a doubtful proposition to begin with, the moral stakes are too high to leave such matters to guessing by a court as to whether Congress truly intended to create a strict liability offense or, more likely, in the rush to pass legislation simply neglected to consider the issue. And even if a court concludes that Congress did not mean to create a strict liability crime, there is the ever-present risk that a court will pick an inappropriate standard that does not provide adequate protection, given the circumstances, to the accused.
What Congress Should Do
Congress should give greater consideration to mens rea requirements when passing criminal legislation, both to make sure that they are appropriate for the type of activity involved and to ensure that the standard separates those who truly deserve the government’s highest form of condemnation and punishment—criminal prosecution and incarceration—and not some other form of sanction. Absent extraordinary circumstances, it should not be enough for the government to prove that the accused possessed “an evil-doing hand”; the government should also have to prove that the accused had an “evil-meaning mind.”[37]
In addition to beginning the arduous task of undertaking a review of existing criminal statutes and regulations to see whether they contain adequate and appropriate mens rea standards, Congress should pass a default mens rea provision that would apply to crimes in which no mens rea has been provided. In other words, if an element of a criminal statute or regulation is missing a mens rea requirement, a default mens rea standard—preferably a robust one—should automatically be inserted with respect to that element.[38]
It is important to remember that such a provision would come into play only if Congress passes a criminal statute that does not contain any mens rea requirement. Congress can always obviate the need to resort to this provision by including its own preferred mens rea element with respect to the statute in question. Moreover, on those (hopefully rare) occasions when Congress wishes to pass a criminal law with no mens rea requirement whatsoever, it should make its intentions clear by stating in the statute itself that Members have made a conscious decision to dispense with a mens rea requirement for the particular conduct in question. Such an extraordinary act—which can result in branding someone a criminal for engaging in conduct without any intent to violate the law or cause harm—should not be accomplished through sloppy legislative drafting or guesswork by a court trying to divine whether the omission of a mens rea requirement in a statute was intentional or not.
This should not be an onerous requirement, and Congress would not have to use a magic formulation of words to make its intent clear. Congress could, for example, choose to make its intent clear by adding a provision to a criminal statute such as: “This section shall not be construed to require the Government to prove a state of mind with respect to any element of the offense defined in this section.”
Who Will Benefit from Mens Rea Reform?
Will some senior corporate management “fat cats” benefit because stricter mens rea requirements make it more difficult to prosecute them successfully? Possibly. After all, most individuals who fall into that category work in heavily regulated industries and are normally given explicit warnings by government officials, usually as a condition of licensure, about what the law, including potential criminal penalties, requires and therefore cannot reasonably or credibly claim that they were not aware that their actions might subject them to criminal liability so long as they acted with the requisite intent. Moreover, as Heritage Foundation Senior Legal Research Fellow Paul Larkin has noted:
Corporate directors, chief executive officers (CEOs), presidents, and other high-level officers are not involved in the day-to-day operation of plants, warehouses, shipping facilities, and the like. Lower level officers and employees, as well as small business owners, bear that burden. What is more, the latter individuals are in far greater need of the benefits from [mens reareform[39]] precisely because they must make decisions on their own without resorting to the expensive advice of counsel. The CEO for DuPont has a white-shoe law firm on speed dial; the owner of a neighborhood dry cleaner does not. Senior officials may or may not need the aid of the remedies proposed here; lower-level officers and employees certainly do.[40]
Consider two examples. Wade Martin, a native Alaskan fisherman, sold 10 sea otters to a buyer he thought was a Native Alaskan; the authorities informed him that was not the case and that his actions violated the Marine Mammal Protection Act of 1972,[41] which criminalizes the sale of certain species, including sea otters, to non-native Alaskans. Because prosecutors would not have to prove that he knew the buyer was not from Alaska, Martin pleaded guilty to a felony charge and was sentenced to two years’ probation and ordered to pay a $1,000 fine.[42]
Lawrence Lewis[43] was born and raised in the projects of Washington, D.C. Seeking to avoid the fate of his three older brothers who got caught up in the criminal justice system and were murdered, and while caring for his elderly mother and raising two daughters, Lewis worked as a janitor for the public school system, took night classes, and eventually rose to the position of chief engineer at Knollwood, a military retirement home. On occasion, some of the elderly patients at Knollwood would stuff their adult diapers in the toilets, causing a blockage and sewage overflow. To prevent harm to the patients, especially those in the hospice ward on the first floor, Lewis and his staff did what they were trained to do on such occasions and diverted the backed-up sewage into a storm drain that they believed was connected to the city’s sewage-treatment system.
It turned out, however, that the storm drain emptied into a remote part of Rock Creek, which ultimately connects with the Potomac River. This was unbeknownst to Lewis, as acknowledged by the Department of Justice in a court filing. Nonetheless, federal authorities charged Lewis with felony violations of the Clean Water Act, which required only proof that Lewis committed the physical acts that constitute the violation, regardless of any knowledge of the law or intent to violate the law on his part. To avoid a felony conviction and potential long-term jail sentence, Lewis was persuaded to plead guilty to a misdemeanor and was sentenced to one year of probation.
Were Wade Martin and Lawrence Lewis corporate fat cats? Hardly, yet both carry the stigma of a criminal conviction and all of the attendant collateral consequences that flow from that.
When morally blameless people like Lawrence Lewis and Wade Martin unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system, not only are their lives adversely affected, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished. That is something that should concern everyone.
Conclusion
In 1933, in a classic law review article that coined the term “public welfare offenses,” Columbia Law Professor Francis Sayre stated: “To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure.”[44] Sadly, that has not proven to be the case. In fact, quite the opposite is true: Such laws have flourished.
To those who would argue that corporate bigwigs might benefit from mens rea reform, Larkin likely would eloquently respond:
To be sure, [mens reareform would] not, and could not be, limited to the lower echelons of a corporation or to persons earning below a certain income. The indigent can demand the appointment of counsel at the government’s expense, but the criminal law has never created a similar divide for defenses to crimes, with some available only for the poor. Just as the sun ‘rise[s] on the evil and on the good’ and it rains ‘on the just and the unjust,’ [mens reareform] will aid senior corporate executives as well as entry-level employees. But any remedy for any of the ills caused by overcriminalization will have that effect. We ought not to reject remedies for a serious problem because the neediest are not the only ones who will benefit from them.[45]
An equally apt and pithier response comes from Representative Bobby Scott, who stated during one of the Over-Criminalization Task Force’s hearings:
The real question before us is how to address not only the regulations that carry criminal sanctions, but also numerous provisions throughout the Criminal Code that also have inadequate or nomens rearequirement.… Addressing and resolving the issue of inadequate or absentmens reaand in all the criminal code would benefit everyone.[46]
The time for mens rea reform is now.
—John G. Malcolm is Director of and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Originally published at Cato Institute by Ilya Shapiro and Randal John Meyer | July 30, 2015
Case: US v DeCoster
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.
Take Austin and Peter DeCoster, who own and run an Iowa egg-producing company called Quality Egg. The DeCosters plead guilty to violating certain provisions of the Food, Drug, and Cosmetic Act because some of the eggs that left their facilities contained salmonella enteritidis, a bacterium harmful to humans. They were sentenced to 90 days in jail and fined $100,000 for the actions of subordinates, who apparently failed, also unknowingly, in their quality-control duties.
In other words, the “crime” that the DeCosters were convicted of didn’t require them to have put eggs with salmonella into interstate commerce, or even to have known (or reasonably been able to foresee) that Quality Egg was putting such eggs into interstate commerce. It didn’t even require the quality-control operator(s) most directly involved in putting the contaminated eggs into interstate commerce to have known that they were contaminated.
Nearly a century of jurisprudence has held that imprisoning corporate officers for the actions of subordinates is constitutionally suspect, given that there’s neither mens rea (a guilty mind) nor even a guilty act—the traditional benchmarks of criminality since the days of Blackstone. Yet there are about 300,000 regulations that can trigger criminal sanctions. These rules are too often ambiguous or arcane, and many lack any requirement of direct participation or knowledge, imposing strict liability on supervisors for the actions (or inactions) of their subordinates.
In United States v. Quality Egg, the district court ruled that courts have previously held that “short jail sentence[s]” for strict-liability crimes are the sort of “relatively small” penalties that don’t violate constitutional due process. Such a sentence has only been imposed once in the history of American jurisprudence, however, and for a much shorter time on defendants with much more direct management of the underlying bad acts. Additionally, prison is not the sort of “relatively small” penalty—like a fine or probation—that the Supreme Court has allowed for offenses that lack a guilty mind requirement.
Joining the National Association of Manufacturers, Cato points out in an amicus brief supporting the DeCosters’ appeal that this case presents an opportunity for the U.S. Court of Appeals for the Eighth Circuit to join its sister court, the Eleventh Circuit, in holding that prison sentences constitute a due-process violation when applied to corporate officers being charged under a strict-liability regulatory regime.
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. A 7-2 majority lined up behind the Chief Justice to strike down the conviction, with Justices Thomas and Alito writing separately.
Mens rea – the criminal law’s requirement of a guilty mind – is usually the sine qua non of a typical criminal offense. In most cases, the mens rea is the difference between a tort and a crime: Negligently hitting someone with a baseball bat might subject you to money damages from the victim, but you won’t go to jail unless you fight the sheriff who comes to attach your car (or home) to pay the judgment. If you hit the victim knowingly or intentionally, however, you’ll probably go to jail. Of course, the lines between criminal and non-criminal acts are somewhat blurrier in practice. Some statutes create “strict liability” crimes, which require no proof whatsoever of a guilty mind, while others penalize various types of accidents.
Elonis was originally briefed with two questions in mind (one statutory, one constitutional) about what mens rea attaches to the interstate threat. The two questions presented focused on whether a subjective intent to threaten is necessary for a conviction under 18 U.S.C. § 875(c). The defendant argued that the meaning of the word “threat” implies an intentional act and that in any event, Virginia v. Black (2003) requires the charged communication to be a “true threat.” The government responded that the statute doesn’t state a mental state with respect to the nature of the threat, so it should be construed as imposing a much lower standard than several similar statutes.
The majority (with the Chief writing) tossed the conviction, rejecting the government’s statutory argument that the mens rea for the crime was strict liability or negligence (citations omitted):
We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” As Justice Jackson explained, this principle is “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Although there are exceptions, the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” We therefore generally “interpret[] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.”
This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim “ignorance of the law is no excuse” typically holds true. Instead, our cases have explained that a defendant generally must “know the facts that make his conduct fit the definition of the offense,” even if he does not know that those facts give rise to a crime.
But
Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.” Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks— “reduces culpability on the all-important element of the crime to negligence,” and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes.” Under these principles, “what [Elonis] thinks” does matter.
Though the majority rejected negligence as the mens rea, the Court stopped short of specifying what mens rea was the right one. Justice Alito objected to this omission, concurring with the majority’s reasoning but dissenting from its refusal to establish “recklessness” as the appropriate standard. On this point, Justice Alito agreed with Justice Thomas’s dissent that “recklessness” was both a constitutionally permissible mens rea under the First Amendment for this case and the proper minimum mens rea under the case law. Justice Thomas likewise criticized the majority’s failure to articulate the applicable standard, but directed most of his vigorous dissent at the majority’s articulation of the appropriate common law background standards.
Elonis is more important for what it leaves open than what it resolves. The Court didn’t supply an answer to what minimum mens rea would apply generally to federal criminal statutes under the background principles for interpretation of criminal statutes. This leaves the door wide open for Congress to pick up where the Court left off and pass its own default mens rea statute. In that respect, Elonis leaves primary responsibility for scaling back the mens rea problem right where it should be: Congress.
Originally published at National Review by Jonathan Keim | 4/19/15
Samuel J. Johnson v. US, McFadden v. US, Horne v. Department of Agriculture
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.
Monday’s argument in Johnson v. United States concerns whether possession of a forbidden firearm (a short-barreled shotgun) counts as a “violent felony” under the Armed Career Criminal Act, which, if part of a defendant’s criminal history, triggers a mandatory minimum. This will be a re-argument of a case argued last November. After the case was submitted, the Court ordered additional briefing on whether the residual clause (“otherwise involves conduct that presents a serious potential risk of physical injury to another”) is unconstitutionally vague.
On Tuesday, the Court will hear argument in McFadden v. United States, which is about what mens rea is required to convict a defendant for distribution of a controlled substance analogue. Some controlled substances were initially identified by a schedule in the text of the relevant statute, which is updated through notice-and-comment rulemaking. The list of analogues is not published, however, so each case goes to a jury to decide whether the alleged analogue is, in fact, an analogue.
Wednesday’s case considers “takings” in Horne v. Department of Agriculture. It’s a bit removed from typical overcriminalization cases, but the issues are clearly relevant to discussions about asset forfeiture and property rights. The U.S. Department of Agriculture currently imposes regulations requiring raisin handlers to skim a portion of the handled raisins and give them to the government. The three questions presented are (1) whether the “categorical duty” to pay just compensation at the time of the physical possession applies only to real property and not personal property; (2) whether the government can get out of the duty to pay by reserving part of the property for the owner; and (3) whether conditioning the ability to engage in commerce on relinquishment of specific property is a per se taking. Arguing for the petitioner will be legal scholar and former appellate judge Michael W. McConnell.
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.
In 2007, professor Tim Wu of Columbia Law School recounted a game played by some prosecutors. One would name a famous person — “say, Mother Teresa or John Lennon” — and other prosecutors would try to imagine “a plausible crime for which to indict him or her,” usually a felony plucked from “the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield.” Did the person make “false pretenses on the high seas”? Is he guilty of “injuring a mailbag”? TOP ARTICLES2/5READ MOREWarren Rips Bloomberg for AllegedlyTelling Pregnant Employee to ‘Kill’ It
In 2009, Harvey Silverglate’s book Three Felonies a Day demonstrated how almost any American could be unwittingly guilty of various crimes between breakfast and bedtime. Silverglate, a defense lawyer and civil libertarian, demonstrated the dangers posed by the intersection of prosecutorial ingenuity with the expansion of the regulatory state.
In 2013, Glenn Harlan Reynolds, University of Tennessee law professor and creator of Instapundit, published in The Columbia Law Review “Ham Sandwich Nation: Due Process When Everything is a Crime.” Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the proliferation of criminal statutes and regulations backed by criminal penalties, what becomes of the mens rea principle that people deserve criminal punishment only if they engage in conduct that is inherently wrong or that they know to be illegal?
Now comes “Rethinking Presumed Knowledge of the Law in the Regulatory Age” (Tennessee Law Review) by Michael Cottone, a federal judicial clerk. Cottone warns that as the mens rea requirement withers when the quantity and complexity of laws increase, the doctrine of ignorantia legis neminem excusat — ignorance of the law does not excuse — becomes problematic. The regulatory state is rendering unrealistic the presumption that a responsible citizen should be presumed to have knowledge of the law.
There are an estimated 4,500 federal criminal statutes — and innumerable regulations backed by criminal penalties that include incarceration. Even if none of these were arcane, which many are, their sheer number would mean that Americans would not have clear notice of what behavior is proscribed or prescribed. The presumption of knowledge of the law is refuted by the mere fact that estimates of the number of federal statutes vary by hundreds. If you are sent to prison for excavating arrowheads on federal land without a permit, your cellmate might have accidentally driven his snowmobile onto land protected by the Wilderness Act.
Regulatory crimes, Cottone observes, often are not patently discordant with our culture as are murder, rape, and robbery. Rather than implicating fundamental moral values, many regulatory offenses derive their moral significance, such as it is, from their relation to the promotion of some governmental goal.
The presumption of knowledge of the law is, Cottone argues, useful as an incentive for citizens to become informed of their legal duties. Complete elimination of the presumption would be a perverse incentive to remain in an ignorance that might immunize a person from culpability. But “there can be no moral obligation to do something impossible, such as know every criminal law,” let alone all the even more numerous — perhaps tens of thousands — regulations with criminal sanctions. The morality of law, Cottone argues, requires laws to be, among other things, publicized, understandable and not subject to constant changes. Otherwise everyone would have to be a talented lawyer, “a result hardly feasible or even desirable.”
Overcriminalization, says professor Reynolds, deepens the dangers of “a dynamic in which those charged with crimes have a lot at risk, while those doing the charging have very little ‘skin in the game.’” With a vast menu of crimes from which to choose, prosecutors can “overcharge” a target, presenting him or her with the choice between capitulation-through-plea-bargain or a trial with a potentially severe sentence.
Given the principle — which itself should be reconsidered — of prosecutorial immunity, we have a criminal-justice system with too many opportunities for generating defendants, too few inhibitions on prosecutors, and ongoing corrosion of the rule and morality of law. Congress, the ultimate cause of all this, has work to undo.
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. In this post, I hope to provide some historical background about some of the contemporary debates about overcriminalization and answer some of the most common questions.
What is “overcriminalization,” anyway?
The term “overcriminalization” usually refers to a constellation of problems with a particular criminal law, ranging from overbreadth to procedural fairness. Critiques based on concerns about overcriminalization will typically argue that the criminal law needs to be refined, narrowed, cabined, or limited in various ways that don’t detract from the central responsibility of criminal law to punish intentional blameworthy conduct.
Concerns about overcriminalization are not, however, the same as the view that criminal punishment is illegitimate or that criminals should get off with light sentences. Such an opinion would find itself at odds with most theories of criminal punishment and basic common sense. Obviously, dangerous criminals should be locked up as punishment, deterrent, and for the protection of the public. Most overcriminalization critiques, rather, are rooted in longstanding principles of the Western legal tradition, many of which go all the way back to Magna Carta.
What kind of problems and principles are you talking about?
Overcriminalization problems typically fall into five categories.
First, the criminal law can punish unintentional conduct. Without a guilty mind, or mens rea, a wrongful act has traditionally been treated as a civil tort rather than a crime. In recent years, however, Congress has increasingly defined crimes without a mens rea, forcing courts to either make one up or assume that Congress intended to punish unintentional acts with jail time.
Second, there are notice problems. The most typical is that a statute is too vague for anyone to know what it prohibits. You might think of this as the reciprocal of the commonplace principle that “ignorance of the law is no excuse” : If the judicial system is not going to accept “ignorance of law” as a defense, criminal laws ought to be sufficiently clear that diligent people can stay out of jail. This calls to mind Suetonius’ account of the Roman emperor Caligula who posted laws in very small letters and in a very narrow place to make the laws as difficult as possible to read. American law, it must be said, does not permit such shenanigans.
The Supreme Court addressed a notice problem in the 2010 case of Skilling v. United States, which raised a void-for-vagueness challenge to the federal “honest-services fraud” statute, which criminalizes schemes to defraud someone of “the intangible right of honest services.” Instead of invalidating the statute outright, though, the Supreme Court narrowed it by construction, declaring that it only covers deprivations of honest services through bribes or kickbacks supplied by a third party who had not been deceived. Only after this drastic narrowing did the Court conclude that the statute was not vague.
Third, and related to the second problem, there is overbreadth: a law may punish conduct that is innocent, socially beneficial, or harmless. This can happen in several ways. A law may be poorly drafted. A law may address a compelling problem at one moment in history, but still be on the books long after the original problem has subsided. The result is that prosecutors gain an enormous amount of discretion as they decide which cases to overlook and which to pursue.
Although prosecutorial discretion is typically used wisely, its sheer scope invites selective prosecutions based on factors like political alignment, popularity, and other non-legal factors. As FDR’s Attorney General (later Justice) Robert H. Jackson put it in a famous speech:
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. . . . It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
Sometimes legislators deliberately pass overbroad laws in an effort to look decisive. This problem arose recently in United States v. Yates (2015), which concerned an obstruction-of-justice law passed to address white-collar crime in the wake of the Enron scandal. There, though, the statute was not used to prosecute an executive who ordered destruction of financial documents or incriminating emails, but a commercial fisherman who tossed out a few undersized fish.
Fourth, there are due process questions. Although the phrase “due process” has been sorely abused by the courts in a substantive sense, procedural due process remains an important limitation on criminal punishment: Property and persons shouldn’t be seized without prior justification, nor may someone be punished without a lawful criminal conviction. These issues come up frequently as part of the discussion of civil asset forfeiture, which I hope to cover in more detail some other time.
Finally, and looming over all these other problems, the sheer scope of federal criminal law raises concerns about whether the Constitution’s allocation of powers between the states and the federal government has been upended. Expansion of the Commerce Clause and other modern trends in post-New Deal jurisprudence have enabled Congress to criminalize virtually anything with only the slightest of nods to interstate commerce, creating something that approximates a general police power. Add to that a ballooning number of federal regulations that regulate the details of modern life (many of which are hooked into criminal offenses) and you have a recipe for nearly unlimited federal power.
There are several more common overcriminalization critiques, such as concerns about excessive punishments and prison reform, but those involve normative discussions that are beyond the scope of this post.
Does all this really go back to Magna Carta? Really?
Not all, but you might be surprised at how much of the Magna Carta is relevant to today’s overcriminalization debate. If you recall, in 1215 a group of angry barons forced King John of England to write down the traditional rights of Englishmen and publish them with the royal seal, thus preventing the notoriously power- and revenue- hungry king from denying them. These rights, later published in a document that we know as Magna Carta, have been considered a definitive proclamation of the rights of Englishmen.
In fact, the drafters of the American Constitution relied closely on Magna Carta for inspiration as they sought to articulate the Bill of Rights. For instance, the Eighth Amendment’s prohibition on “excessive fines” is prefigured by Magna Carta’s article 14:
A freeman is not to be amerced [fined] for a small offence save in accordance with the manner of the offence, and for a major offence according to its magnitude, saving his sufficiency (salvo contenemento suo), and a merchant likewise, saving his merchandise, and any villain other than one of our own is to be amerced in the same way, saving his necessity (salvo waynagio) should he fall into our mercy, and none of the aforesaid amercements [fines] is to be imposed save by the oath of honest and law-worthy men of the neighbourhood. Earls and barons are not to be amerced save by their peers and only in accordance with the manner of their offence.
Some rights declared in Magna Carta raise important questions about the civil asset forfeiture debate (articles 22 and 29):
We [the King] shall not hold the lands of those convicted of felony save for a year and a day, whereafter such land is to be restored to the lords of the fees.
* * *
No freeman is to be taken or imprisoned or disseised [dispossessed] of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.
As the constitutionally-appointed deliberative body for lawmaking, Congress should take the lead on reform. Congress could define a default mens rea for all federal statutes, provide more concrete rules for interpreting unclear laws, and scale back criminalization of regulatory offenses. There are some indications that Congress is taking its responsibility seriously, such as the House’s creation in January of a new procedural rule ensuring that new crimes are reviewed by the Judiciary Committee. Hopefully this will improve the quality of new criminal offenses under federal law. Somewhat more ambitiously, Congress could undertake a comprehensive review of existing federal crimes and fix the problems more comprehensively.
Reform is primarily Congress’s responsibility, but the executive and the judicial branches have some tools, too. The Department of Justice, which initiates all federal prosecutions, could adopt prosecution guidelines that adopt a more cautious posture toward the problems identified above. New guidelines might, for instance, recommend that prosecutors avoid bringing cases where no mens rea must be proven, or that prosecutors not pursue prison time for crimes involving mere regulatory violations. Under Attorney General Eric Holder, the Department of Justice has already taken much more drastic action in the area of drug enforcement, so by comparison, any measures of the kind I’ve suggested would be quite modest.
The judicial branch, for its part, can faithfully apply the rule of lenity and void-for-vagueness doctrines, among other longstanding legal principles that constrain overcriminalization. If excessive judicial deference to Congress is the danger on one side, though, the danger on the other side is that judges begin substituting their idiosyncratic policy judgment s for Congress’s and judicially nullify fully constitutional laws.
The overcriminalization debate is quite complex, so I’ve necessarily skipped over numerous interesting topics in favor of broad strokes. Over the coming weeks and months, I will return to discuss some of these issues in more detail. Stay tuned!
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:
[The bill] would end up meaning that some criminals would go free as a result, because we simply would not be able to meet that standard of proof. If this proposal were to pass, it would provide cover for top-level executives, which is not something we think would be in the best interest of the American people.
Ms. Yates caricatures mens rea reform as a protection for rich defendants, not for ordinary Americans, but she is wrong. Consider the experience of Lawrence Lewis, for instance, who became a federal criminal because he did something noble: He diverted sewage away from a retirement home’s sickest residents and into an outside storm drain that he thought was connected to the main sewer system. The federal government prosecuted him.
What’s more, crimes without a mens rea – so-called “strict liability crimes” – create the possibility of jail time and criminal felony convictions for accidental conduct. One paper discussing the problem put it particularly well:
Mens rea requirements are more important today because the federal government creates so many new crimes. Historically, nearly all crimes—because they were common law crimes—concerned acts that were malum in se, or wrong in itself, such as murder, rape, robbery, burglary, and theft. Virtually all new federal crimes and offenses are malum prohibitum, or wrong only because it is prohibited—using a 4-H club logo without authorization is an illustrative example of a malum prohibitum offense. For malum prohibitum crimes and petty offenses, mens rea requirements are needed in order to protect individuals who have accidentally or unknowingly violated the law.
In other words, basic justice is at stake. Saying that mens rea reform provides cover for defendants is like saying that the Commerce Clause provides cover for drug dealers. If anything, mens rea reform mostly protects the millions of Americans who can’t retain armies of lawyers to advise them about the ever-changing scope of malum prohibitum offenses. Basic mens rea requirements can certainly create more work for the government sometimes, but they also ensure that all criminal defendants, not just rich ones, will be treated fairly.
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.
In Clay, federal prosecutors converted a contract dispute between a medical services provider, WellCare Health Plans, and the State of Florida Agency for Healthcare Administration (AHCA) into a criminal action. The company had interpreted a complex state law regarding the repayment of Medicaid premiums to the state in a manner that was contrary to AHCA’s interpretation. AHCA’s interpretation was not memorialized in a state regulation or guidance document. Despite this lack of guidance, federal prosecutors indicted WellCare and its executives for health care fraud. The company entered into a deferred-prosecution agreement, leaving the executives to fend for themselves.
The key issue at trial was whether the WellCare executives’ interpretation of Florida law was reasonable. This question goes to the existence of an actus reus—i.e., were the executives’ actions unlawful? In a criminal trial, this issue should be addressed by the presiding judge, not the jury. The judge in Clay, however, instructed the jury to decide whether the defendants’ interpretation was reasonable. He also failed to follow an Eleventh Circuit precedent, U.S. v. Whiteside, which dictates the government must prove beyond a reasonable doubt that a defendant’s statement or submission “is not true under a reasonable interpretation of the law.”
Rules requiring the judge, not the jury, to determine legal questions, and precedents such as Whiteside, are critical in today’s regulatory environment. As attorney Matthew G. Kaiser wrote in the WLF Legal Backgrounder on U.S. v. Clay:
Businesses must regularly interpret complex laws and regulations impacting their communications with federal and state governments. Tax forms, license applications, claims for payment from the government, and a myriad of other forms demand answers to questions that have more than one reasonable answer. Without the protection of judicial precedents like Whiteside, interacting with the federal government becomes a high-stakes game of “Gotcha!”
Those protections are especially important for executives who, under a September 9, 2015 “Principles of Federal Prosecution” memo from Deputy Attorney General Sally Quillian Yates, will increasingly be subject to criminal investigation and prosecution in addition to, or apart from, their companies.
All who share WLF’s concerns with overcriminalization and the federal erosion of business civil liberties should keep a close eye on what the Eleventh Circuit does in Clay.
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.
Non-profit government accountability watchdog Cause of Action (COA) filed an amicus brief in 2014 supporting Yates. COA’s Executive Director Dan Epstein noted that the Supreme Court’s ruling in favor of Mr. Yates “protected individual rights against arbitrary government prosecutions.”
Though she disagreed with the Court’s decision, Justice Kagan laid plain the state of overcriminalization in her dissent, admitting that this law is “unfortunately not an outlier, but an emblem of deeper pathology in the federal criminal code.”
As the Charles Koch Institute’s senior research fellow Vikrant Reddy describes it, “Overcriminalization refers to the frequent use of criminal law—rather than civil law or administrative sanctions—to punish behavior that historically would not have been viewed as criminal.” A number of scholars, prosecutors, and activists have charted the growth of the federal criminal code, as well as regulations carrying criminal penalties, and have begun shining a light on its dismal impact on individual lives. The United States Code contains nearly 4,500 criminal offenses.
Since 2000, Congress has created an average of 56 new crimes annually. Further, modest estimates count over 300,000 regulations that carry criminal penalties. According to University of Notre Dame Law School professor Stephen Smith, overcriminalization and cases of “abusive prosecution … take place from coast to coast and have ruined the lives and reputations of people who were like other law-abiding citizens except for their misfortune of having attracted the attention of an overzealous federal agent or prosecutor.”
How is it possible that an otherwise law-abiding citizen would find himself facing a federal conviction?
The growing volume of laws and regulations carrying criminal penalties makes it nearly impossible to discern what is and is not a crime.
A crime requires both an actus reus (“guilty act”) and a mens rea (“guilty mind”). But many laws and regulations containing criminal penalties do not include an intent requirement, meaning individuals can be prosecuted for unknowingly breaking the law.
Many modern criminal laws are written in vague and ambiguous language. Combined with the absence in the criminal code of a clear definition of a crime, the criminal implications of an act are often left open to interpretation by prosecutors, defense attorneys, and citizens.
According to James Copland, director of the Manhattan Institute’s Center for Legal Policy, “The proliferation of criminal statutes undermines a key principle: that folks know in advance what conduct could land them in prison.” Overcriminalization, he says, “has moved us from the rule of law to the rule of prosecutors. And if our laws are too voluminous—if we can go to jail for a mistake—our liberty is seriously compromised.”
Experts studying this unsettling phenomenon have proposed a number of solutions for protecting innocent citizens from overcriminalization. Georgetown Law professor John Baker advocates an “interpretive rule” that “reads in a mens rea where one is not literally provided in the statutory language.” Further, he proposes adding a definition of a “crime” to the criminal code.
Sidney Powell, a former federal prosecutor who criticized the increasing “politicization of the Justice Department and the use of prosecutors,” has called on Congress to introduce open-file discovery legislation requiring prosecutors to share all evidence and information with criminal defendants and mandating harsh penalties for those who fail to comply. She concludes that prisons “should be reserved for people who are a danger to the community. Those who are not dangerous could be engaged in more productive activities (at no or little cost to the taxpayers) while they pay restitution or their debt to society.”
In his amicus brief filed in the Yates case, Smith remarked: “I am glad the court finally seems to understand that ‘prosecutorial discretion’ is no panacea. Federal prosecutors routinely engage in overcharging—seeking disproportionately severe punishments which no reasonable person could believe warranted.” He left readers with a stern warning that “if proportionality of punishment and the rule of law are to mean anything, federal courts must take seriously their obligation to ensure that federal prosecutors are not exceeding the proper scope of their authority under criminal statutes.”
Curbing overcriminalization is vital for restoring the rule of law, whereby laws are applied consistently and justly, as opposed to rule by the discretion of prosecutors. The scholars mentioned above will discuss these issues in a panel on “Protecting the Innocent in an Era of Overcriminalization” at the Charles Koch Institute’s Summit on Public Safety and Human Dignity in New Orleans this November.
As issues of public policy go, few are as strange as overcriminalization. Once largely the subject only of academic complaint, the problems associated with overcriminalization are now more widely understood. Major think tanks,[1] media outlets,[2] civil libertarian groups,[3] and legal professional associations[4] have shined a harsh light on the injustices that federal prosecutors have committed against people who had no reason to know their actions were wrongful, much less illegal.
These are not isolated cases of abusive prosecution; they take place from coast to coast and have ruined the lives and reputations of people who were like other law-abiding citizens except for their misfortune of having attracted the attention of an overzealous federal agent or prosecutor.[5] From left and right of political center to points in between, there is an impressive consensus that overcriminalization gravely threatens the liberty of ordinary citizens.
Nevertheless, reports of overcriminalization’s demise would be greatly exaggerated. Congress has repeatedly held hearings on the subject, and members of both parties have criticized the present state of affairs in which the law virtually “makes everyone a felon.”[6] Yet Congress has taken no action.
Even that bleak statement is too optimistic: Congress, while at times professing concern over the federalization of crime,[7] has continued to pass new federal criminal laws at a relentless pace. Congress has created an average of 56 new crimes every year since 2000, roughly the same rate of criminalization from the two prior decades.[8] This is no aberration. As Professor John Baker has noted, “for the past 25 years, a period over which the growth of the federal criminal law has come under increasing scrutiny, Congress has been creating over 500 new crimes per decade.”[9]
Much like the addict who repeatedly breaks promises to quit, Congress cannot seem to kick the overcriminalization habit. Some addicts eventually seek help through third-party “interventions,” but the federal courts, committed as they are to expansive views of congressional power to define crimes,[10] will not nudge Congress even to curb its reliance on overcriminalization, much less to quit cold turkey.
At this point, traditional critiques of overcriminalization hit a brick wall because overcriminalization is understood primarily in quantitative terms: the notion that there are too many criminal laws regulating too many activities. From this view, reform efforts depend entirely on Congress, which needs to narrow and repeal scores of federal criminal laws. Absent such legislative action, federal prosecutors will continue to have free rein to exploit the vagaries of federal law to charge and convict whomever they wish, regardless of how innocuous the accused’s behavior is.
Fortunately, there is another path to reform in this area, one that does not depend on congressional action (or heroic self-restraint by federal prosecutors). This path to reform is informed statutory interpretation in federal criminal cases. Legislative overuse and prosecutorial misuse of the criminal sanction need not go unchecked, as many judges seem to think. The courts themselves have an important role in defining crimes, a role that takes on even greater importance as Congress continues to default on its obligation to restrict criminal liability and penalties to sensible bounds.
Courts flesh out—and, more often than not, prescribein the first instance—the state of mind required for conviction. The state-of-mind, or mens rea, requirements are of vital importance in preventing morally undeserved punishment and guaranteeing the fair warning necessary to enable law-abiding citizens to avoid committing crimes. As important as the role of defining the mental element of criminal liability is, however, it is not the judiciary’s only role in this area. The courts also help to define criminal liability by interpreting ambiguous statutes, determining the meaning of laws in which Congress failed to make its intention entirely clear.
Once the important role of the federal judiciary in defining criminal liability is understood, there is greater cause for optimism about the prospect of finally reining in overcriminalization. The effort to persuade Congress to reverse course and exercise greater restraint and care in the use of criminal sanction is important and should continue. It is time, however, to broaden the conversation to include the one branch of the federal government—the judiciary—that is most likely to be receptive to long-standing complaints about overcriminalization. As we continue to await legislative reform, it is high time for courts to be part of the solution to overcriminalization instead of part of the problem.
The rest of this paper proceeds as follows. The first section seeks to reframe the typical discussion of overcriminalization in terms of the deeper problems stemming from the expansive body of federal criminal law. These problems, which stem fundamentally from poor crime definition, are ones that the federal courts helped to create and thus can remedy on their own without action by Congress. Although comprehensive legislative reform is ultimately needed, the reform effort can and should take place in federal courtrooms as well as in the chambers of Congress.
The second and third sections discuss the ways in which courts have worsened—and, by changing interpretive strategies, can counter—the adverse effects of overcriminalization through statutory interpretation.It is not “restraint” for courts to expand ambiguous federal criminal statutes and to water down mens rea requirements. To the contrary, it is “activism” and an abdication of the judiciary’s historic responsibility to promote due process and equal justice for all.
To be faithful to its role as a coequal branch of government, the federal judiciary should not be rubber stamps for the Department of Justice’s predictably expansive uses of federal criminal statutes. The judiciary should instead counteract the personal, political, and other considerations that often sway prosecutorial decision making with informed, dispassionate judgment about the proper scope of federal criminal laws in light of statutory text, legislative intent, and enduring principles of criminal law. The sooner federal judges get the message, the sooner overcriminalization’s days will be numbered and the court system can resume the business of dispensing justice instead of merely punishment.
Overcriminalization Defined
As the term implies, critiques of overcriminalization posit that too many criminal laws are on the books today and, relatedly, that existing criminal prohibitions are too broad in scope. This standard view of overcriminalization is quantitative in that it bemoans the number of criminal laws on the books and the amount of activity that is deemed criminal.
Arguments that there is too much criminal law typically stress the fact that new criminal laws are continuously added to the books, even when crime rates are low or falling, and that the expansion often involves “regulatory” offenses. Such offenses punish conduct that is mala prohibita, or wrongful only because it is illegal, and may allow punishment where “consciousness of wrongdoing be totally wanting.”[11] With the continued proliferation of regulatory offenses, conduct that in prior generations might have resulted only in civil fines or tort liability (if that) is now subject to the stigma and punishment of criminal law.[12]
Although the quantitative view tends to dominate discussions of overcriminalization, it is unsatisfying on its own terms. While such frequent use of the criminal sanction, especially during election years and times when crime rates are low or falling, may suggest that Congress is legislating for reasons other than legitimate public-safety needs, new criminal legislation might be used, for example, to signal voters that its proponents are “tough” on crime.[13] Alternatively, steady expansion in the reach of federal crimes might signify that Congress does not see (or simply does not care much about) potential misuse of increasingly broad prosecutorial authority.[14]
Still, a broad, constantly expanding criminal code need not jeopardize individual liberty or mete out morally undeserved punishment. If the prohibitions and penalties are carefully tailored to appropriate offenses and offenders, a large, expanding code can operate as justly as a code that is smaller and more targeted in its reach. For this reason, the quantitative objection to overcriminalization is, without more, incomplete.
The quantitative objection implies a deeper, qualitative objection to overcriminalization in that overcriminalization tends to degrade the quality of the criminal code, producing unjust outcomes. For example, a code that is too large and grows too rapidly will often be poorly organized, structured, and conceived. The crimes may not be readily accessible or comprehensible to those who are subject to their commands. Moreover, a sprawling, rapidly growing criminal code likely contains inadequately defined crimes—crimes, for example, in which the conduct (actus reus) and state of mind (mens rea) elements are incompletely fleshed out, giving unintended and perhaps unwarranted sweep to those crimes.
The number and reach of criminal laws may be symptomatic of a broken criminal justice system, but the poor quality of the criminal code and the resulting mismatch between moral culpability and criminal liability are the disease.
Overcriminalization as a (Partially) Self-Inflicted Judicial Wound
Once overcriminalization’s qualitative aspects are understood, it becomes evident that the blame for overcriminalization cannot be laid entirely at Congress’s doorstep. Regrettably, the courts have played the overcriminalization game with Congress and the Department of Justice. They have done so by expansively interpreting ambiguous criminal statutes in derogation of the venerable “rule of lenity” and by not insisting on mens rea requirements robust enough to rule out morally undeserved punishment. Both of these interpretive failures have made federal criminal law even broader and more punitive.
Expansive Interpretations as Judicial Crime Creation. It is often said that courts do not “create” federal crimes, but that simply is not the case. When courts expand the reach of ambiguous criminal laws (laws which, by definition, can reasonably be read to include or exclude the defendant’s conduct), they are essentially creating crimes. They are determining for themselves, within the broad bounds of the terms of an ambiguous statute, whether the defendant’s conduct should be condemned as criminal, and they are doing so after the fact, without prior warning to the defendant charged with a violation. To allow citizens to be convicted and imprisoned based on such judicial determinations transforms federal criminal law into what one scholar has described as “a species of federal common law”[15]—a result fundamentally at odds with the principle that in a democracy, the criminalization decision is reserved for legislatures.[16]
The root of the problem is that the courts are notoriously inconsistent in adhering to the rule of lenity. The rule of lenity requires a court to construe ambiguous criminal laws narrowly, in favor of the defendant,[17] not to show lenience to lawbreakers, but to protect important societal interests against the many adverse consequences that the judicial expansion of crimes produces. These consequences include judicial usurpation of the legislative crime-definition function, not to mention potential frustration of legislative purpose and unfair surprise to persons convicted under vague statutes. The rule of lenity therefore reflects, as Judge Henry Friendly memorably said, a democratic society’s “instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.”[18]
More to the point, faithful adherence to the rule of lenity would require courts to counteract overcriminalization. The rule would require courts to narrow the scope of ambiguous criminal laws, adopting expansive interpretations onlyif compelled by the statutory text. This would prevent prosecutors from exploiting the ambiguities of poorly defined federal crimes either to criminalize conduct that Congress has not specifically declared to be a crime or to redefine—or ratchet up the penalty for—crimes dealt with more specifically in other statutes. The rule of lenity would thus make poor crime definition an obstacleto—not a licensefor—more expansive applications of federal criminal law, remitting prosecutors seeking more enforcement authority to the democratic process, not an unelected, unaccountable judiciary.
Regrettably, the federal courts treat the rule of lenity with suspicion and, at times, outright hostility. While sometimes faithfully applying the rule of lenity, the Supreme Court has frequently either ignored lenity or dismissed it as a principle that applies only when legislative history and other interpretive principles cannot give meaning to an ambiguous statute.[19] Indeed, the federal courts disregard the rule of lenity so frequently that it is questionable whether the rule of lenity can still be accurately described as a rule. As I have previously stated:
[T]he courts’ aversion to letting blameworthy conduct slip through the federal cracks has dramatically reversed the lenity presumption. The operative presumption in criminal cases today is that whenever the conduct in question is morally blameworthy, statutes should bebroadlyconstrued, in favor of the prosecution, unless the defendant’s interpretation is compelled by the statute…. The rule of lenity, in short, has been converted from a rule about the proper locus of lawmaking power in the area of crime into what can only be described as a “rule of severity.”[20]
The results of the judiciary’s haphazard adherence to the rule of lenity are as predictable as they are misguided. Federal judges have repeatedly used ambiguous statutes as a basis for creating new federal crimes.[21] They have also expanded the reach of overlapping federal crimes to drive up the punishment that Congress prescribed for comparatively minor federal crimes.[22] The end result of such assaults on the rule of lenity is necessarily a broader and more punitive federal criminal law—a worsening of overcriminalization rather than an improvement.
Inadequate Mens Rea Requirements. The courts have done better—but only slightly—in fleshing out the state-of-mind, or mens rea, requirements for federal criminal liability. As the Supreme Court explained in Morissette v. United States,[23] the concept of punishment based on acts alone without a culpable state of mind is “inconsistent with our philosophy of criminal law.” In our system, crime is understood as a “compound concept,” requiring both an “evil-doing hand” and an “evil-meaning mind.”[24]
The historic role of the mens rea requirement is to exempt from punishment those who are not “blameworthy in mind” and thereby to limit punishment to persons who disregarded notice that their conduct was wrong.[25]Mens rea also serves to achieve proportionality of punishment for blameworthy acts, ensuring that the punishment the law allows “fits” the crime committed by the accused. Mens rea, for example, guarantees that the harsher penalties for intentional homicides will not be applied to accidental homicides.[26]
Despite the critical importance of mens rea to the effectiveness and legitimacy of federal criminal law, federal crimes often lack sufficient mens rea elements. Many federal crimes, including serious crimes, contain no express mens rea requirements.[27] Perhaps more commonly, federal crimes include express mens rea requirements for some element of the crime but are silent as to the mens rea (if any) required for the other elements.[28] Here it is evident that Congress intended to require mens rea but unclear whether Congress intended the express mens rea requirement to exclude additional mens rea requirements. In still other situations, even when Congress includes mens rea terms in the definition of crimes, it uses terms such as “willfully” and “maliciously” that have no intrinsic meaning and whose meaning varies widely in different statutory contexts.[29]
This confusing state of affairs might be acceptable if the courts employed a consistent method of mens rea selection. However, the courts have been inconsistent in their approach to mens rea questions. On occasion, the Supreme Court stands ready to read mens rea requirements into statutes that are silent in whole or in part as to mens rea because the Court has an interest in making a morally culpable state of mind a prerequisite to punishment.[30] This, however, is not invariably so.
Sometimes, courts treat legislative silence concerning mens rea as a legislative signal to dispense with traditional mens rea requirements, especially with respect to regulatory crimes protecting the public health, safety, and welfare. Even Morissettev. United States, with its strong emphasis on the usual requirement that a culpable mental state is a prerequisite to punishment, conceded that the requirement may not apply to regulatory or other crimes not derived from the common law.[31] The Court seized on this statement in United States v. Freed[32] as justification for treating a felony punishable by 10 years in prison as a regulatory offense requiring no morally culpable mental state.
To be sure, more recent cases cast doubt on Morissette and Freed in this respect. Among these cases are Arthur Andersen LLP v. United States,[33]Ratzlaf v. United States,[34]and Staples v. United States.[35] In each case, the Supreme Court adopted heightened mens rea requirements, and Arthur Andersen and Ratzlaf went so far as to make ignorance of the law a defense.[36] Each time, the Court ratcheted up mens rea requirements for the stated purpose of preventing conviction for morally blameless conduct.
These cases, I believe, are best read as making a culpable mental state a prerequisite for punishment for all crimes, even regulatory offenses. As I have explained elsewhere:
[T]he Supreme Court has dramatically revitalized the mens rea requirement for federal crimes. The “guilty mind” requirement now aspires to exempt all “innocent” (or morally blameless) conduct from punishment and restrict criminal statutes to conduct that is “inevitably nefarious.” When a literal interpretation of a federal criminal statute could encompass “innocent” behavior, courts stand ready to impose heightened mens rea requirements designed to exempt all such behavior from punishment. The goal of current federal mens rea doctrine, in other words, is nothing short of protecting moral innocence against the stigma and penalties of criminal punishment.[37]
The fact remains, however, that Freed and cases like it have never been overturned. Unless that happens, confusion will persist, as will the possibility that a culpable mental state may not be required for some crimes, especially regulatory offenses involving health and safety concerns.
One thing, however, is certain: As long as courts fail to make proof of a culpable mental state an unyielding prerequisite to punishment, federal prosecutors will continue to water down mens rea requirements in ways that allow conviction in excess of blameworthiness. That is exactly what prosecutors did in Arthur Andersen during the wave of post-Enron hysteria over corporate fraud. In seeking to convict Enron’s accounting firm of the “corrupt persuasion” form of obstruction of justice, prosecutors—flatly disregarding the lesson of cases like Staples and Ratzlaf—argued for incredibly weak mens rea requirements that, as the Court noted, would have criminalized entirely innocuous conduct.[38]
Although the Supreme Court unanimously rejected the Justice Department’s efforts and overturned Arthur Andersen’s conviction, the firm has less cause to celebrate than one might think. After being convicted on a prosecution theory so aggressive that it could not win even a single vote from the Justices, the firm—once a Big Five accounting firm—went out of the consulting business. Even now that it no longer stands convicted of a crime, its reputation has likely been damaged beyond repair. Its own conduct in the Enron matter had a lot to do with that, of course, but so did the overzealousness of federal prosecutors in exploiting the serious imperfections in federal mens rea doctrine. The Arthur Andersen episode simultaneously shows the need for substantial mens rea reform and the high cost of not having strong mens rea requirements.
The Judicial Path to Overcriminalization Reform
Given that overcriminalization has qualitative components—for which courts themselves bear a large share of the blame—courts can be part of the solution instead of part of the problem. Even if Congress and federal prosecutors continue their unrestrained use of the criminal sanction, courts are not powerless to act.
The solution is for courts to interpret statutes in ways that rectify the qualitative defects that overcriminalization produces in a body of criminal law as sprawling and poorly defined as federal criminal law is. New interpretive strategies, tailored to the troubling realities of a criminal justice system characterized by rampant overcriminalization, can help to right this fundamental wrong in federal criminal law.[39]
Statutory construction, of course, has its limits and cannot be used to defeat the operation of statutes that plainly encompass the defendant’s conduct. In cases such as these, courts should apply the statutes as written, barring some constitutional infirmity, but even here courts can exercise informed discretion to counteract abusive exercises of prosecutorial discretion.
After United States v. Booker,[40] district judges have wide sentencing discretion, and they can and should use that discretion to show suitable lenience toward sympathetic defendants. The President can also use his power to grant pardons or commute sentences—as President Barack Obama recently did to free eight prisoners serving unduly long drug sentences in the wake of the Fair Sentencing Act of 2010[41]—to do justice toward defendants who were unfairly convicted or sentenced.[42] Although these important safeguards for the sound administration of criminal justice should not be overlooked, this paper focuses on how courts can interpret criminal statutes to counteract the effects of overcriminalization.
Restoring the Rule of Lenity to Its Rightful Place. In light of how often courts interpret criminal statutes expansively, it should be clear that they do not simply let the weights in the interpretive scales determine whether statutes are to be read broadly or narrowly, as academic critics of lenity would have them do.[43] Instead, the balance is heavily skewed in favor of the prosecution when the conduct in question is morally blameworthy, even when a broad interpretation allows prosecutors to drive up considerably the punishment that would otherwise apply or to evade limitations that the legislature included in the definition of the crime in more specific statutes.
Whether the law enforcement need for expanded authority is real,[44] minimal,[45] or just silly,[46] the one constant seems to be that courts will go to almost any lengths to keep blameworthy conduct from slipping through the federal cracks. Thus, it is closer to the truth to say that the operative interpretive rule in federal criminal cases is severity: that ambiguous statutes presumptively should be construed broadlyto prevent culpable defendants from slipping through the federal cracks.
In practice, then, rejecting the rule of lenity tends to look a lot like endorsing anti-lenity (or a rule of severity). That, in turn,affords a substantial justification for taking lenity seriously, even if, as a theoretical matter, an evenhanded approach to the interpretation of criminal statutes might be preferable to a strict-construction default. After all, even critics of lenity do not contend that criminal laws should always be interpreted broadly, recognizing that sometimes courts should narrow the reach of criminal statutes.[47]
The obvious assumption is that there is a viable interpretive middle ground between the lenity side of the spectrum (in which ambiguous statutes are always construed narrowly) and the anti-lenity or severity side of the spectrum (in which such statutes are always construed broadly). This assumption is quite difficult to reconcile with the courts’ rather checkered track record in interpreting federal crimes.[48] Given that courts often miss valid reasons for narrowly construing statutes, a consistently applied rule of lenity under which every ambiguous criminal statute is read narrowly is the right interpretive rule.
The political economy of criminal law confirms that lenity is the right interpretive default. The relevant question is which interpretive rule would give Congress proper incentives to make its intentions clear concerning the scope and meaning of criminal statutes. To the extent that legislatures generally share prosecutors’ desire for broad criminal prohibitions,[49] a rigidly enforced rule of lenity would operate as an information-forcing default rule, giving Congress added incentives to make its wishes known ex ante.
Additionally, once an ambiguity arises in particular settings, as it often does, the question is whether the Department of Justice or groups favoring criminal justice reform are in the best position to convince Congress to pass new legislation resolving the interpretive question. The Justice Department—the 800-pound gorilla in federal criminal law—is undoubtedly best suited to the task of overcoming legislative inertia. As Professor Einer Elhauge explains, “there is no effective lobby for narrowing criminal statutes,” whereas “an overly narrow interpretation is far more likely to be corrected…because prosecutors and other members of anti-criminal lobbying groups are heavily involved in legislative drafting and can more readily get on the legislative agenda.”[50] Strict adherence to the rule of lenity would thus put the burden of overcoming legislative inertia on the shoulders of the party in the best position to persuade Congress to act.
Finally, a reinvigorated rule of lenity would promote the more effective operation of prosecutorial restraint. When courts stand ready to expand ambiguous criminal laws to keep blameworthy offenders from slipping through the cracks in federal criminal law, prosecutors can safely “push the envelope” and stretch vague laws to their outer limit. As long as they target blameworthy offenders—and, disturbingly, even if they do not[51]—prosecutors can be confident that courts will ratify their broad readings of criminal laws.
Lenity would dramatically change the calculus by lowering the prosecution’s likelihood of conviction, giving prosecutors greater incentives to decline prosecution in cases of blameless or marginally blameworthy offenders potentially guilty only of hypertechnical, victimless crimes—the kind of offenders who tend to become ensnared in the overcriminalization net. The administration of justice in federal prosecutions, therefore, would vastly improve if federal courts started taking the rule of lenity seriously.
Proportionality-Based Approaches to Statutory Construction. If federal judges remain fickle in their adherence to the rule of lenity despite its obvious advantages, they should at least take into account the potential sentencing consequences before expanding the reach of a criminal statute. This inquiry would require courts to look past the facts of the cases before them, hypothesize the range of potential applications of the statute,[52] and pay close attention to the penal consequences of an expansive interpretation. In cases in which an expansive interpretation would threaten to visit disproportionate punishment on convicted offenders, as determined against the baseline of other criminal laws (state or federal) proscribing the same criminal act, a narrow reading is the appropriate response unless the statute’s plain meaning commands a broader interpretation.[53]
Proportionality considerations should also be factored into mens rea selection. The Supreme Court should repudiate the notion that avoiding conviction for morally blameless conduct is the only goal of mens rea doctrine.[54] A separate, equally vital and proper concern of mens rea doctrine is to ensure that the sanctions available in the event of conviction will be proportional to the blameworthiness of convicted offenders.[55]
Imposing punishment in excess of blameworthiness is just as offensive in principle as convicting blameless conduct: Either way, courts are imposing punishment that is not justified by the culpability of the offender and gambling with the moral credibility of the criminal law. Crimes for which Congress has prescribed severe penalties should require correspondingly high levels of mens rea so that offenders will be seriously blameworthy. Only then will convicted offenders be morally deserving of the stiff penalties that federal law affords.
Reinvigorate Mens Rea Requirements. Finally, courts should substantially overhaul federal mens rea doctrine. Quite simply, the doctrine is in dire need of reform both in its underlying theory and in its operational details. For the stated purpose of preventing punishment for morally blameless (or “innocent”) conduct,[56] the Supreme Court has made “innocence protection” the driving force in mens rea selection. Heightened mens rea requirements can and should be imposed where (and onlywhere) a federal criminal statute would otherwise potentially reach morally blameless conduct.[57]
In addition to making disproportionate punishment a proper concern of mens rea doctrine, courts should free the prevailing federal method of selecting mens rea from the shackles that prevent it from achieving its important goal of aligning punishment and blameworthiness. Once courts detect a potential innocence-protection problem—understood not just as the potential for punishment of blameless acts, but also as disproportionate punishment for blameworthy acts—the courts should impose whatever heightened mens rea requirement is necessary to limit punishment in accordance with blameworthiness. In doing so, courts should not be at all reluctant to require, where necessary to avoid morally undeserved punishment, prosecutors to prove knowledge that the defendant knew his conduct was illegal.
This more robust mens rea doctrine could be the single most important contribution the courts could make to avoiding the qualitative problems associated with overcriminalization. Overcriminalization horror stories typically involve prosecutors using obscure regulatory laws as traps for unwary citizens who are understandably unaware either of the existence or the meaning of the law in question.[58] To the extent that judges start demanding proof in these cases, not only of the facts that make the defendants’ conduct illegal, but also of the defendants’ knowledge that they were breaking the law, prosecutors could no longer count on guilty pleas or guilty verdicts.
The effect would not simply prevent unjust punishment, although that is a worthy goal in its own right. It would also give the federal government much-needed incentives either to give the regulated public notice that such obscure crimes exist, thereby enabling itself to prove knowing illegality, or, as one scholar helpfully suggests,[59] to use administrative or civil enforcement mechanisms in place of criminal prosecutions to achieve the government’s regulatory goals. In a free society, criminal prosecution—the most coercive and stigmatizing exercise of governmental authority—should be a last resort, reserved for cases in which the government’s legitimate regulatory goals cannot otherwise be achieved.
Conclusion
As this brief survey of federal criminal law has shown, overcriminalization is a serious problem in the federal system and more generally for American criminal law. The number and scope of criminal laws, however, is only the tip of the iceberg. Ultimately, overcriminalization is so problematic because it tends to degrade the quality of criminal codes and result in unwarranted punishment, jeopardizing the quality of justice the system generates. While overcriminalization is the order of the day in the federal system, rendering the legislature no longer supreme in matters of crime and punishment, it is ultimately prosecutors who exploit incompletely defined crimes and the redundancy of the criminal code to expand the scope of their enforcement power and ratchet up the punishment that convicted defendants face.
As judges decry this state of affairs and scholars hope against hope for bold legislative or constitutional solutions, they have missed something critical. Given that the federal courts helped to make federal criminal law as broad and punitive as it is, there is a ready solution to overcriminalization’s many problems short of legislative self-restraint or judicial activism in the name of the Constitution.
The solution is for federal judges to approach their vital interpretive functions with keen sensitivity to the many adverse effects that overcriminalization and the courts’ current, self-defeating interpretive strategies create for federal criminal law. If courts cease giving unwarranted scope to ambiguous criminal laws and redouble their efforts to use mens rea requirements to rule out morally undeserved punishment—understood not merely as punishment for blameless acts, but also as disproportionately severe punishment for blameworthy acts—overcriminalization need not be the disaster that so many with good cause believe it to be.
—Stephen F. Smith is Professor of Law at the University of Notre Dame.
Originally published at National Review by Evan Bernick | 1/13/14
Bouie v. City of Columbia
It’s time for our lawmakers to end overcriminalization.
In the wake of media reports that 40,000 new federal, state, and local laws will go into effect this year, there’s no better time for Americans to revisit the old maxim that “ignorance of the law is no excuse.” An unknown number of these new provisions are criminal laws that can deprive us of our liberty and brand us for life. No ordinary American can be expected to know every law, new and old, on the books, not even every criminal law. Anyone concerned about Americans’ being locked up for innocent behavior should resolve to help end overcriminalization.
Overcriminalization strikes at the heart of our constitutional order. In Bouie v. City of Columbia the U.S. Supreme Court explained the constitutional doctrine of “fair notice,” which holds that a criminal law “must give warning of the conduct it makes a crime.” Traditionally, this requirement was satisfied if (1) the prohibited act was inherently wrongful — such as murder, arson, theft, robbery, or rape — or (2) an individual did something that he or she knew was illegal, even if it was not inherently wrongful.
#ad#In recent years, though, federal, state, and local laws that do not meet either requirement but carry criminal penalties have proliferated. Exacerbating the problem, as noted by Ohio State law professor Joshua Dressler in his comprehensive treatise Understanding Criminal Law, “many modern statutes are exceedingly intricate” and “even a person with a clear moral compass is frequently unable to determine accurately whether conduct is prohibited.” As a result, ordinary Americans can be victimized by laws supposedly designed to protect them.
Some overcriminalization incidents can sound amusing until we remember that they involve real people whose lives can be ruined. Last year police charged 46-year-old Ocean Beach, Calif., resident Juvencio Adame with “defacement, damage and destruction” of public property in excess of $400 — charges that could have resulted in significant prison time. His crime? Trimming shrubbery next to his home. Then there’s 17-year-old Cody Chitwood of Cobb County, Ga. Police charged him with a felony for bringing weapons into a school zone. The “weapons” were fishing knives, and they were in a tackle box in Cody’s truck. Georgia law states that any knife “having a blade of two or more inches” is a weapon, and that anyone who carries a weapon onto school property is by that very act guilty of a crime.
“Ignorance of the law is no excuse”? Spare us.
What should we do about this grave threat to our liberties? We can start by addressing the inadequate mens rea (guilty mind) requirements in our criminal law. Legislators must work to identify and repeal or amend laws with insufficient mens rea requirements, and ensure that no such laws are passed in the future.
Additionally, lawmakers should codify interpretive rules that require courts to read meaningful mens rea requirements into any criminal offenses that lack them (unless Congress makes it clear that it intended to enact a strict-liability offense with no mens rea requirement) and should direct courts to apply any existing mens rea term in a criminal offense to each material element of that offense. Legislators should also codify the “rule of lenity” — a judicial rule of interpretation that requires courts to construe ambiguous criminal laws in favor of the accused.
Finally, legislators need to provide an escape hatch for those who were “rationally ignorant” of the law: a mistake-of-law defense in which a defendant would have the burden of producing evidence that he did not know that his conduct was illegal, nor would a reasonable person in his position have believed that the charged conduct was illegal.
Once upon a time, it made sense to insist that ignorance was no excuse for violating the law. Today, that maxim often sounds like a cruel joke. Let’s work to ensure that people are criminally punished only for wrongdoing, not for ignorance of laws that they had no reason to think existed in the first place.
— Evan Bernick is a visiting fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Originally published at The Heritage Foundation by John G. Malcolm and Norman L. Reimer | 12/11/13
Despite some of the sharpest political divisions in memory, Congress managed to mount one noteworthy bipartisan effort this year. Since May, the Over-criminalization Task Force, comprising five Republicans and five Democrats from the House Judiciary Committee, has worked diligently to develop recommendations that will address some of the fundamental problems plaguing the federal criminal justice system. The task force has been analyzing worrisome trends such as:
• the dramatic expansion of the size and scope of the federal criminal code over the past few decades;
• the proclivity of Congress to enact offenses without a mens rea — “guilty mind” — requirement, which leaves people vulnerable to being sent to jail for doing something they had no idea was a crime;
• the tendency to pass laws that are so vaguely worded that the limit of their reach is constrained only by the charging prosecutor’s creativity;
• and the ever-increasing labyrinth of federal regulatory crimes.
At four public hearings convened earlier this year, task force members heard testimony from people representing a wide array of professions and ideologies — from professors and lawyers to everyday citizens who have been unfairly prosecuted. The witnesses all agreed on one thing: Legislation is needed to ensure that criminal laws and regulations are interpreted to adequately protect against unjust convictions for engaging in activities that no reasonable person would assume is against the law.
Several practical reform measures were raised during the hearings. Among these are enacting laws that would require federal courts to read a meaningful mens rea requirement into any criminal offense that lacks one (unless Congress clearly intended otherwise); direct courts to apply any existing mens rea term in a criminal offense to each material element of the offense (similar to subsection 2.02(4) of the American Law Institute’s Model Penal Code); and codify a judicial rule of interpretation that requires courts to construe ambiguous criminal laws in favor of the accused.
Such reforms would embody fundamental fairness — an essential element of good government.
Since its creation in May, the congressional task force has remained faithful to its mandate, while maintaining the bipartisan unity that spurred its creation. The work of the task force, however, is not done. It has yet to address critical issues that fuel, or result from, the over-criminalization phenomenon. Among these are the ever-increasing collateral consequences of conviction; the impact of harsh mandatory prison sentences that sometimes bear little relationship to actual culpability or harm; and the societal costs of over-federalization. While the reforms previously mentioned are critical components of any solution to the over-criminalization problem, they are not the only solutions.
It is imperative that the task force attack the problem as broadly as possible. The answer to every societal ill should not be more criminal laws and harsher sentences. Moreover, over-criminalization can ruin the lives of morally blameless people and undermine the public’s respect for the integrity and fairness of our criminal justice system.
Unfortunately, authorization for the Over-criminalization Task Force expired Nov. 30. It would be a shame to let such a promising start go for naught. The House Judiciary Committee should reauthorize the task force so that it might continue with its important work.
Reviving the panel and its work would send two sorely needed messages. One, that Washington seeks to protect innocent people by restoring justice to the federal criminal justice system and applying common sense and proportionality when punishing those who are blameworthy under the law. And two, that it is still possible for members of Congress to cross the partisan divide and act meaningfully to address a problem that affects us all.
– Editor’s Note:Norman L. Reimer co-authored this commentary.
– John G. Malcolm is the director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
– Norman L. Reimer is the executive director of the National Association of Criminal Defense Lawyers.
Originally published at Cato Institute by Jonathan Blanks | July 19, 2013
“Bipartisanship” sounds like a good idea in theory, but it usually ends up as broad congressional agreement that the American people have too many liberties or too much money. However, there is one area in which there is a growing bipartisan effort toward increased individual liberty: fighting overcriminalization.
Today, the House Judiciary Committee’s Overcriminalization Task Force held its second hearing, in which members of Congress asked two leading legal experts about the importance of restoring some sanity to federal law. Specifically, this hearing focused on the lack of mens rea—that is, criminal intent—in many federal criminal prosecutions. Put simply, as the law stands, an American can unknowingly and accidentally break federal law yet still be held criminally liable for felonies in federal courts. The conduct that leads to these prosecutions is often not serious, and sometimes nothing more than an administrative mistake. Other times, these offenses are simply the result of overzealous federal prosecutors stretching the limits of broad statutory or regulatory language to pad their conviction totals without much effort or expenditure. Yet these seemingly harmless acts can trigger prosecutions that can cost families their livelihoods or even land innocent people in federal prison.
The abuse of the law is so clear that, throughout the hearing that lasted just over an hour, 10 members of Congress and two witnesses—Norman Reimer of the National Association of Criminal Defense Lawyers and law professor John Baker—found very little about which to disagree. You can watch the very heartening and informative hearing here (action begins at the 19:00 minute mark, just after 9:03AM), via the Library of Congress on USTREAM.
Originally published at The Daily Signal by Joseph Luppino-Esposito | 4/17/12
Imagine the police knocking on your door because you mistakenly forgot to fill out an obscure form required by foreign law before opening up a small business. Imagine your 80-year-old mother being arrested for failing to place the appropriate sticker on an otherwise properly shipped package. Imagine your cancer-stricken neighbor being criminally charged for failing to trim the shrubbery in front of their house. Or imagine your child being prosecuted for eating a French fry in a public place.
Unfortunately, none of these situations is imaginary. While delivering the keynote address at a Seton Hall Circuit Review symposium dedicated to overcriminalization, Edwin Meese III, the former Attorney General of the United States, noted that these are “examples of recent cases where ordinarily law-abiding citizens suddenly found themselves prosecuted as criminals.” He also noted to the audience of lawyers, law students, and academics that the harm of overcriminalization is not merely the possibility of jail time, but the additional insult that results from being thrown into the criminal justice system and the corresponding loss of personal and business reputation. In many cases, individuals found not guilty or those indicted but never prosecuted by the government are unable to cleanse themselves of the stigma of being charged with a crime. Furthermore, while the prosecution of these individuals is highly publicized, an acquittal or the investigation’s termination usually goes unannounced.
“In a democratic republic, government must perform its public safety functions within a framework of liberty and justice,” said Meese.
Meese noted that there were approximately 3,000 federal criminal statutes in the mid-1990s according to an American Bar Association task force. By the turn of the millennium, Congress had added another 1,000 criminal statutes to the United States Code. And today, leading experts estimate that there are nearly 4,500 criminal offenses in the federal code alone.
The story does not end there. Meese observed that the explosive growth of the federal bureaucracy has exacerbated the problem. In recent years, Congress has adopted broad statutes authorizing administrative agencies to promulgate regulations, which when violated, constitute a crime. These regulations do not appear anywhere in the United States Code. Instead they are found in the Code of Federal Regulations, which the great majority of law professors and students have never even touched, never mind average citizens. With more than 300,000 regulations at the federal level alone, it comes as no surprise that innocent Americans are increasingly snared in the web of the criminal justice system.
What may be particularly disturbing is the way in which the criminal law is used as a blunt instrument for something that it was not intended. As overcriminalization has increased, it has become clear that “criminal law and criminal punishment become nothing more than convenient tools for the exercise of government power to make sociological changes or to try to change social behavior,” Meese said. “The implications of this kind of power in the hands of government officials are grim for all aspects of American life, from personal liberty to global economic competitiveness,” he added. “If one has a utopian view of society then surely it follows that the most powerful force for compelling change, that is, criminal punishment, ought to be used to bring about that utopia.”
Lest we despair too much, there is a light at the end of this tunnel. When the nation’s former chief law enforcement officer is at the forefront of addressing the growing trend towards overcriminalization, change is possible. And General Meese is not alone in this fight. Joining Meese and Heritage are organizations across the political spectrum, including the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Manhattan Institute, and Washington Legal Foundation, making the possibilities endless.
The time has come to remind our lawmakers in Washington, D.C., and in state capitals nationwide what every law student knows by graduation: Punishing conduct by individuals who lack a guilty mind should be the exception and not the rule. And it is time for lawmakers to stop criminalizing broad swathes of conduct while leaving the details to administrative agencies. As Meese noted at the conclusion of his speech, “If it is important enough to send someone to prison, it is important enough for the Congress itself to debate that particular conduct and that particular punishment in a statute.”
An audio stream of Meese’s speech may be found here.
Joseph Luppino-Esposito is a Visiting Legal Fellow at The Heritage Foundation. Co-authored by Rahool Patel, a third-year law student at Seton Hall Law School and the Symposium Editor of the Seton Hall Circuit Review.
