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Too Many Laws Means Too Many Criminals

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

Yates v. US

When three missing fish can land someone in jail on felony charges, reform is needed.

‘There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” retired Louisiana State University law professor John Baker told the Wall Street Journal in July 2011. “That is not an exaggeration.”

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

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

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

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

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

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

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

That “deeper pathology” is overcriminalization.

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

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

Fiction has become reality.

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

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

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

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

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

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

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

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

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

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

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A Rare Bipartisan Consensus In Favor of Overcriminalization Reform

Originally published at The National Review by Carrie Campbell Severino | 1/5/15

The Wall Street Journal has published an editorial about a proposed change to the rules of the House of Representatives allowing the House Judiciary Committee to review legislation creating new criminal offenses. According to the Journal:

The 114th Congress convenes next week and Republicans are discussing major reform from taxes to immigration. A smaller but still refreshing change would give more careful review when creating new federal crimes.

On Monday the House Republican conference will debate the rules of the chamber, including a measure to refer proposed new criminal offenses to the House Judiciary Committee. This is supposed to be the routine practice, but Members can sidestep Judiciary by adding to an existing statute.  

This practice contributes to a problem that Justice Scalia noted in his dissent in Sykes v. United States:

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. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.

The number of federal criminal laws has ballooned in recent decades, and, as Professor John Baker noted in this Federalist Society white paper, there has been a concurrent erosion in the quality of draftsmanship, the most concerning of which is the failure to include an adequate mental (mens rea) element for crimes. These trends have led to bipartisan calls for reform, forging a coalition of diverse organizations ranging from the Manhattan Institute and the Heritage Foundation on the right, to the National Association of Criminal Defense Lawyers and the Constitution Project on the left.   

Judiciary Committee chairman Bob Goodlatte and Crime Subcommittee chairman Jim Sensenbrenner deserve a lot of credit for turning their committee’s attention to this problem. They organized a task force to study the problem, a series of hearings, and now they are asking the full House to give them the rules they need to start turning the tide. I hope their colleagues will join them in addressing a serious but under-appreciated public-policy problem.  

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Overcriminalization Undermines Respect for Legal System

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.

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Bipartisanship at Its Finest

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.


For a primer on overcriminalization, I highly recommend Cato’s new video with Families Against Mandatory Minimums’ Molly Gill:

For more Cato on overcriminalization, see here and here.