Every year on September 17, the Cato Institute puts on a great all-day program celebrating Constitution Day. Geared for lawyers but interesting to anyone concerned with the state of American law, the event focuses on the most compelling cases before the U.S. Supreme Court. The day features several different panels focused on themes the Court… Continue Reading
Originally published at The Daily Signal by Amir Babak Banyan and Bryan Puckett | August 20, 2019
In an opinion issued on Aug. 5, the 6th U.S. Circuit Court of Appeals struck a small but valuable blow against prosecutorial overreach and the problem of overcriminalization. Continue Reading
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.
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Originally published at Manhattan-Institute by James R. Copland and Rafael A. Mangual | August 8, 2018
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.
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Originally published at Cato Institute by Jay Schweikert | April 25, 2018
Cases: Black v. US, Weyhrauch v. US
The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Continue Reading
Originally published at Cato Institute by Jay Schweikert | April 17, 2018
That’s the opening line and general theme of Justice Neil Gorsuch’s concurring opinion in Sessions v. Dimaya, announced today. In this case, Justice Gorsuch joined the Court’s four “liberals” in a 5-4 decision holding unconstitutional a provision of the Immigration and Nationality Act, which renders deportable any alien convicted of an “aggravated felony.” Continue Reading
Originally published at Cato Institute by Ilya Shapiro and Reilly Stephens | March 14, 2018
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. Continue Reading
Originally published at Cato Institute by Tim Lynch | February 16, 2017
People: Aaron Swartz, Dudley Hiibel, Bobby Unser, Eric Garner
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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.
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Originally published at National Review by JIM COPLAND & RAFAEL A. MANGUAL | 1/14/2017
Determining what is and what isn’t a crime should be part of the political process.
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Originally published at The Orange County Register by James R. Copland and Rafael A. Mangual | 11/17/16
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.
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Originally published at Manhattan Institute by James R. Copland and Rafael A. Mangual | 6/15/16
Each year, the Department of Justice (DOJ) and other federal agencies enter into scores of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) with businesses: DPAs involve cases in which criminal charges have been filed, and the DOJ asserts that judicial oversight is limited to ensuring their compliance with the Speedy Trial Act; NPAs are entered into without the filing of any formal criminal charges, and no judge ever reviews their contents. Faced with the threat of criminal charges, most companies agree to settle because the collateral consequences of a conviction (or often, even an indictment) are so harsh—in many cases, they amount to a corporate death sentence.
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Originally published at Cato Institute by Ilya Shapiro and Randal John Meyer
The explosion in criminal statutes is only a part of the problem of overcriminalization. The other side of the coin is prosecutorial discretion: a prosecutor’s official authority to charge certain offenses and not to charge others. The growth of criminal codes, state and federal, gives prosecutors more tools, which allows them to both “stack” charges and expand the reach of criminal code provisions to new, non-criminal facts. Continue Reading
Originally published at Manhattan Institute by James R. Copland and Rafael A. Mangual | 10/12/15
On Oct. 1, a bipartisan group of senators including Charles E. Grassley (R-Iowa), Dick Durbin(D-Ill.), and Cory Booker (D-N.J.), announced a plan to reduce mandatory criminal sentences under federal law for nonviolent offenders and help former prisoners reintegrate into society. Such an effort is overdue, but insufficient to fully remedy the overreach of federal criminal law. To do so, lawmakers must also bring attention to what we and other reformers have called “overcriminalization” in federal code. Continue Reading
Originally published at Boston Herald by Jordan Richardson | 6/8/15
Overcriminalization, the overuse or misuse of criminal law to address societal problems, is a troubling phenomenon that touches every segment of society. It manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing and criminal sanctions for simple mistakes or accidents. Continue Reading
Originally published at National Review by Timothy Head & Matt Kibbe| 5/21/15
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.” Continue Reading
Originally published at Cato Institute by Gene Healy
On April 22, a House Judiciary subcommittee approved a bill that would send parents to jail for at least three years if they learn of drug activity near their children and fail to report it to authorities within 24 hours. Continue Reading
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. Continue Reading
Originally published at The Heritage Foundation by Paul Larkin Jr. and Michael Mukasey | February 12, 2015
What has happened to federal criminal law in recent decades? Several former senior Department of Justice officials have expressed their concern with the path we have taken,[1] along with the American Bar Association,[2] numerous members of the academy,[3] journalists,[4] and other organizations like The Heritage Foundation.[5] We agree with their considered opinion that overcriminalization is a serious problem and needs to be remedied before it further worsens the plight of the people tripped up by it and further injures the public interest Continue Reading
Originally published by Cato Institute by David Boaz | February 2, 2015
As 2014 drew to a close, the mainstream media were full of laments about the “least productive Congress.” Or more precisely that the just‐concluded 113th Congress was the secondleast productive Congress ever (since the mid‐1940s when these tallies began), second only to the 2011-12 112th Congress. Continue Reading
Originally published at The Heritage Foundation by Paul J. Larkin, Jr | 1/9/12
Abstract: Are maple syrup felons sufficiently heinous that they should be imprisoned for perhaps as long as 45 years? Some members of the U.S. Senate seem to believe the answer is yes: How else to explain the provisions of the Maple Agriculture Protection and Law Enforcement Act of 2011? Continue Reading
riginally published at Politico by Charles G. Koch & Mark Holden | January 7, 2015
As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. Continue Reading
Originally published at The Heritage Foundation by Stephen F. Smith | 8/21/14
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. Continue Reading
Originally published at The Heritage Foundation by Paul Larkin Jr | 5/9/14
The Heritage Foundation and others have criticized the modern-day phenomenon known as “overcriminalization,”[1] the neologism given to the overuse and misuse of the criminal law.[2] Those criticisms have taken several forms: Legislatures pass too many statutes creating crimes (especially federal offenses); legislatures too frequently empower administrative agencies to define crimes or otherwise “fill in the blanks” in laws that can be enforced through the criminal process; legislatures too often define offenses with inadequate mens rea or scienter (“guilty mind”) requirements; and legislatures too often increase penalties for existing crimes simply to make it look as though they have done something to reduce crime. Continue Reading
Originally published at Manhattan Institute by Isaac Gorodetski James R. Copland | 2/25/14
The last ten years have seen the emergence of a new approach to business regulation and prosecution of wrongdoing in the United States. The U.S. Department of Justice now regularly enters into “deferred prosecution” or “non-prosecution” agreements (DPAs or NPAs) with large corporations, in which companies are paying billions of dollars in fines annually without trial. Continue Reading