Appeals Court Ruling Slaps Down Prosecutorial Overreach

Originally published at The Daily Signal by Amir Babak Banyan and Bryan Puckett | August 20, 2019


  • There are hundreds of thousands of federal crimes, creating a minefield of criminal liability that Americans unknowingly walk through every day.
  • Prosecutors already have tremendous power, and the fewer tethers it has, the more unjust its use becomes.  
  • The 6th Circuit deserves praise for overturning the convictions of Amir Babak Banyan and Bryan Puckett in Tennessee.Copied

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.

By now, overcriminalization—the overuse and abuse of criminal laws to address every societal concern and punish every mistake—is a familiar problem. 

There are hundreds of thousands of federal crimes, creating a minefield of criminal liability that Americans unknowingly walk through every day.

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The federal criminal code and the hundreds of thousands of criminal statutes contained in federal regulations criminalize things such as making an annoying noise in a national park, allowing a horse to exceed a “slow walk” when people nearby are on foot, and using a surfboard on a beach designated for swimming.

No less serious than the problem of criminalizing all sorts of innocent behavior is the problem posed by overzealous prosecutors who stretch the law to obtain as many criminal convictions as possible.

As The Heritage Foundation’s Paul Larkin writes, overzealous prosecutors “might not acknowledge or even recognize instances of overcriminalization, and even if they did, they might not highlight them, because doing so would embarrass the attorney general and individual U.S. attorneys who had the authority to prevent any such prosecutions.”

In the 6th Circuit case, prosecutors charged the defendants with bank fraud, even though they didn’t commit bank fraud. The defendants did commit mortgage fraud, but the government didn’t prosecute them for that. 

In fact, for reasons unknown, the prosecutors ignored that crime for five years until the statute of limitations expired.  

Then, realizing that their delay cost them a mortgage fraud conviction, the prosecutors searched the criminal code for some law that might let them prosecute the defendants anyway. They settled on bank fraud, even though the defendants’ crime didn’t fit the bill. 

But the court refused to expand the law because the bank fraud statute “is as straightforward as they come” and plainly did not cover mortgage fraud. It ordered that the defendants be acquitted.

That was the right outcome. 

You might counter, “The defendants were guilty of something. Surely they should go to jail, regardless of the prosecutors’ mistake.” But that flips due process on its head, allowing the government to lock people up whenever—and for whatever—it wants.

Prosecutors already have tremendous power, and the fewer tethers it has, the more unjust its use becomes.  

Consider the case of Eddie Leroy Anderson and his son. 

Prosecutors charged them with federal felonies for looking for arrowheads on federal land. Although they found no arrowheads, prosecutors argued that the mere act of looking for them was an attempt to violate an obscure law that the father and son didn’t know existed.  

Facing felony convictions and prison terms, Anderson and his son pleaded guilty to lesser charges.

In another case, prosecutors charged a fisherman with destruction of “tangible objects” in violation of a law designed to prevent financial companies from destroying records of fraudulent activities. 

The Supreme Court reversed the fisherman’s conviction and held that although fish are, strictly speaking, tangible objects, prosecuting the fisherman for throwing fish back into the sea was an impermissible expansion of a law designed to target financial crimes.

In each of these cases, prosecutors zealously sought a conviction, but never stopped to ask if they were doing justice.

The 6th Circuit deserves praise for overturning the convictions of Amir Babak Banyan and Bryan Puckett in Tennessee.

In so doing, the court reminded the prosecutors that liberty is best protected by interpreting criminal statutes narrowly and putting the burden squarely on the government to apply the right laws to the right crimes.

Prosecutors would do well to remember U.S. Supreme Court Justice George Sutherland’s admonition in a 1935 ruling that although a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.”

This piece originally appeared in The Daily Signal


Justice Gorsuch on Overcriminalization and Arbitrary Prosecution

Originally published at Cato Institute by Jay Schweikert | April 17, 2018

“Vague laws invite arbitrary power.”

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.” This statutory phrase is defined to include a “crime of violence,” which itself is defined to include both crimes where use or threat of force is an element, as well as”any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” It was this last provision — the “residual clause” of the statute — that was at issue in the case. The majority held that this abstract definition was “impermissibly vague,” and thus a violation of the Fifth Amendment’s Due Process Clause.

In his separate opinion, Justice Gorsuch gave a detailed analysis of the history and legal foundations of the void-for-vagueness doctrine (largely in response to Justice Thomas, who questioned the propriety of this constitutional doctrine both here and in a similar prior case, Johnson v. United States). His concurrence argues that courts must review and strike down unconstitutionally vague statutes, not just to ensure fair notice to potential defendants, but also to enforce the separation of powers between the branches of government:

Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.”

Justice Gorsuch also made clear that subjecting vague statutes to meaningful judicial review is equally important in civil cases, where penalties are often at least as harsh as they are under the criminal law:

[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies.

This analysis obviously has implications reaching far beyond the immigration context, and is encouraging for those concerned with overcriminalization and arbitrary law enforcement in general. Justice Gorsuch correctly notes that “[p]erhaps the most basic of due process’s customary protections is the demand of fair notice.” But today, we have so many criminal laws that it’s impossible to even count them all: at the federal level alone, we estimate that there are about 4500 criminal statutes, and around 300,000 regulatory crimes — many of which do not involve inherently wrongful conduct and lack any “mens rea” requirement (that is, you can be found guilty even if you had no idea you were acting unlawfully). Who could possibly claim that such a system gives the ordinary citizen “fair notice” of the conduct for which they can be punished?

This degree of overcriminalization also places enormous unchecked power in the hands of law enforcement and prosecutors. As Justice Gorsuch recognized, vague and expansive laws “invite the exercise of arbitrary power . . . by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” The staggering breadth of substantive criminalization today means that almost everyone is a criminal, whether they know it or not. If police and prosecutors are inclined to go after you, there’s almost certainly something they can find — whether or not that conduct is genuinely wrongful or harmful.

On the whole, Justice Gorsuch’s opinion in this case is an encouraging sign that he’s aware of and attuned to this set of concerns. Hopefully the newest member of the Court will continue to apply this level of exacting review to vague and arbitrary statutes across the board.


Not Everything That’s Unseemly Should Be Illegal

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.

Take for example several recent prosecutions under New Jersey’s official misconduct statute, a felony provision with a mandatory five-year, no-parole sentence.

On its face, the law simply prevents government officials from abusing their offices for personal gain. “Official misconduct” under the statute means an official’s act or omission “relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.” Prosecutors have used this broadly worded language in highly creative ways.

In one recent case, New Jersey Superior Court Judge Carlia M. Brady was charged with official misconduct and harboring a fugitive. Judge Brady went to the police on June 10, 2013 to report that her car was stolen and that her then-boyfriend, Jason Prontnicki, was likely involved. As it turned out, Prontnicki was wanted on an outstanding warrant for robbery. The police informed Judge Brady that she was obliged as an “officer of the court” to inform the police as to Prontnicki’s whereabouts. When Prontnicki showed up at her house for brief periods of time on June 10 and 11, Judge Brady informed Prontnicki that he could not stay with her and Prontnicki made clear his intentions to turn himself in with the help of counsel. After both incidents, Judge Brady called the police and left unreturned voicemails. On June 11, police arrested Prontnicki and Brady at her home.

Clearly Judge Brady had violated her duty to report the whereabouts of a wanted criminal suspect, right? The only problem is that such a duty doesn’t exist, either for citizens generally or for judges specifically.

In New Jersey, like most places, the enforcement of arrest warrants is the job of law enforcement officials, such as police. Indeed, the very idea of a judge enforcing the warrants she or her colleagues issue conjures up the ridiculous image of a robe-clad jurist chasing a fleeing suspect while wielding a wooden gavel. The state supreme court has even made clear that judges don’t have an official duty to effectuate arrest warrants.

Yet the prosecutor decided to charge Brady not only with harboring Prontnicki—a dubious move given her clear instructions for him to stay away, the absence of any assistance, and their understanding that he would turn himself in—but with official misconduct. In the prosecutor’s eyes, Brady’s judicial role created a special duty to report and her failure to do so constituted official misconduct—despite clear case law to the contrary and the fact that Judge Brady was on vacation from her official duties when the relevant acts occurred.

The misuse of New Jersey’s official misconduct statute isn’t limited to judges or even executive-branch officials, but reaches teachers.

In two cases, those of Adrian McConney and Nicole McDonough, high school teachers who had sex with adult students were charged with official misconduct. Neither had been accused of promising grade bumps or using their authority to control or initiate the sexual relationship. Because of this absence of the abuse of official power for some sort of quid pro quo, prosecutors in both cases looked to the administrative codes governing teacher conduct to invent a legal duty that was allegedly violated by consensual sexual relationships.

The administrative codes governing educators were not intended to provide the basis for criminal prosecution, and say as much expressly. In other words, these teachers’ extra-curricular activities may be firing offenses (and maybe not — we don’t want to get into employment law and union regulations) but they’re not crimes.

If the prosecutors’ logic were carried to its conclusion, these codes—which require such innocuous things as teachers’ maintaining professional appearance at all times—could result in five-year mandatory no-parole sentences. Every municipal bureaucrat would now have the power to write criminal law via civil guidance; any principal who has a personal conflict with a teacher could threaten prosecution with a savvy interpretation of administrative rules.

Moreover, words in official government guidance would lose all meaning: if the state says that a particular civil code will not be the basis for criminal prosecution, that should be a good indicator to a reasonable person that he or she will not run afoul of criminal laws by violating that code. Due process of law demands sufficient notice of what is criminal before a statue is applied against a defendant.

In both the federal and state criminal-justice systems, prosecutors are quite properly entrusted with discretion to charge appropriate offenses in appropriate cases—but that discretion is abused when the law is made to stretch to cover obviously licit conduct. Whatever one thinks of a judge who fraternizes with shady characters or teachers who have sex with adult students, New Jersey has not seen fit to criminalize either of these behaviors. It’s not the job of prosecutors to gap-fill the criminal code by dubiously extending the reach of criminal provisions such that anything that hints of social impropriety must be criminal.

It’s bad enough when legislatures pass laws to criminalize behavior of which they morally disapprove—as Bill Buckley said, not everything that’s bad should be illegal—but when prosecutors effectively write their own criminal codes, it’s the antithesis of the rule of law.


When District Attorneys Attack

Originally published at National Review by Kevin D. Williamson | 5/31/15

(Mirko Vitali, Visivasnc/Dreamstime; Illustration: NRO)

The GOP should turn its attention to prosecutorial misconduct.

As the old Vulcan proverb has it, “Only Nixon can go to China.” And only Nixon’s political heirs can fix the persistent — and terrifying — problems that continue to plague this country’s law-enforcement agencies and prosecutors’ offices.

Exhibit A: Orange County, California.

The sunny Southern California county with a population surpassing that of nearly half the states has a Republican district attorney, Tony Rackauckas, and a big problem on its hands: Its entire prosecutorial apparatus — all 250 lawyers in the district attorney’s office — have been disqualified from participation in a high-profile capital-murder case following revelations that the office colluded with the Orange County sheriff’s department to systematically suppress potentially exculpatory evidence in at least three dozen cases, committing what legal scholars have characterized as perjury and obstruction of justice in the process.

One of the questions involves a secret database of jail records related to confessions obtained via informants. Sheriff’s officers denied the database even existed, and their deception was abetted by prosecutors, leading an exasperated judge to issue an order noting that they “have either intentionally lied or willfully withheld material evidence from this court during the course of their various testimonies. For this court’s current purposes, one is as bad as the other.” The judge unsubtly recommends prosecution.

RELATED: Injustice System: Today’s America Is a Landscape of Legal Abuse

The database tracking inmates’ movements around the jail and the reason for those movements is significant, because Orange County law enforcement and prosecutors were in the habit of placing targeted suspects in proximity to criminal informants, who were rewarded with reduced sentences, favors, or money — payments in some instances ran into the six figures — for helping put together cases against jailed suspects. This practice is illegal. It is one thing if a suspect in custody speaks about his crimes and an informant comes forward to report that confession; it is another thing to operate a program under which the interrogation of suspects is effectively delegated to incarcerated felons who are secretly on the county’s payroll. The lack of present legal counsel is only the beginning of what is wrong with that practice.

To operate such a program is ipso facto a violation of the law and of ethical standards for jailers and prosecutors both. To lie about it is a serious crime. It may turn out to be a lucky thing after all that these defective prosecutions will probably open up a great many jail cells: Orange County is going to have to put these sheriff’s officers and prosecutors somewhere.

RELATED: Baltimore’s Problem, and America’s: The Criminal-Justice System Is a Disaster

The despair-inducing details of the case can be located in the pages of OC Weekly, but the climax so far is this:

Superior Court Judge Thomas M. Goethals made an unprecedented, historic move after announcing he’d lost confidence in Orange County homicide and gang prosecutors to obey simple legal rules of conduct. Goethals, a onetime prosecutor and campaign contributor to the DA, recused Rackauckas and his entire staff from People v. Scott Dekraai, the capital case stemming from the 2011 Seal Beach salon massacre.

What this means is that the prosecutors’ office is, in effect, an example of that other O.C.: organized crime.

Prosecutorial misconduct is a plague upon these United States.

A secret cache of electronic records containing information that is potentially embarrassing to political figures, and the criminal handling of that database, is of course an all-too-familiar story to those of us who have been following the saga of Hillary Rodham Clinton’s e-mails, which were originally in digital form, were converted into paper printouts, and are now in the process of being redigitized before they are handed over to investigators, a process that only the naïve would believe exists for any purpose other than tampering with the evidence. The Orange County authorities had been using their database, called TRED, for a quarter of a century. Prosecutors were aware of it, and the sheriff’s officers who testified before Judge Goethals had made thousands of entries in it. Yet they could not quite recall its existence when honor, duty, and the law obliged them to do so.

This is not a one-off. Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.

RELATED: America Desperately Needs to Fix It’s Overcriminalization Problem

The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency. But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.

Only the Republican party has the credibility and the political capital to take on the difficult task of reining in rogue police agencies and abusive prosecutors.

But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it. Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign. But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs. In the bigger cities, Republicans are thin indeed in those ranks. But that is not the case in Orange County. In Orange County, Republicans have no excuse.

Democrats may have ruined Detroit, Baltimore, Cleveland, etc., and they are well on their way toward doing the same thing to Los Angeles, Philadelphia, New York, etc. If Republicans want to show that they can do better, then fixing the mess in Orange County, a community more populous than Chicago, would be an excellent place to start.

— Kevin D. Williamson is roving correspondent at National Review.


America Desperately Needs to Fix Its Overcriminalization Problem

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.


Heritage Report: When Fighting Crime Becomes Piling On: The Over-Criminalization of Fraud

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? This bill, known as the MAPLE Act, would make it a “federal crime…for anyone knowingly and willfully to distribute into interstate commerce a product that is falsely labeled as maple syrup.” While falsely labeling a product should not go unpunished, there are ample criminal laws on the books to deal with the false labeling of maple syrup. The real threat raised by the MAPLE Act is not that of a shadowy syrup syndicate, but a U.S. Congress determined to expand the federal criminal law well beyond its intended limitations—the phenomenon known as overcriminalization.

Three months ago, the Maple Agriculture Protection and Law Enforcement Act of 2011 (MAPLE Act) was introduced in the Senate. The bill would make it a federal crime, punishable by up to five years’ imprisonment, for anyone knowingly and willfully to distribute into interstate commerce a product that is falsely labeled as maple syrup. Although punishing offenders for genuine fraud is a reasonable policy, this bill does not materially advance that policy—at least not at a reasonable cost. Instead, it amounts to piling on.

The MAPLE Act is an innocuous-looking bill. No one would contend that falsely labeling a product should go unpunished in some way or other. For example, a party injured by fraud can seek relief under the law of torts, contracts, and restitution.[1] Because “all civil penalties have some deterrent effect,”[2] private civil actions also can discourage other parties from committing fraud and therefore serve a valuable public interest. Fraud also is punished under the criminal law: Fraud has been a crime at common law in some form or another for more than 300 years;[3] the states outlaw fraud;[4] and numerous statutes make fraud a federal offense.[5]

Such redundant criminalization, however, is the problem. The type of fraud at which the MAPLE Act is aimed already is outlawed by one or more federal criminal laws, to say nothing of state criminal laws and state tort law. Indeed, there are dozensof federal statutes making fraud a crime.

Even considering only the two most widely used federal antifraud laws—the mail fraud and wire fraud acts[6]—there is no reason to believe that any large-scale fraud in the marketing or sale of maple syrup is not already a crime. After all, the parties who commit such fraud need to use the mails or telecommunications facilities to advertise, to ship their goods, to be paid, or for other reasons. One or the other (or both) of those laws should do the trick. To be sure, neither statute may reach someone who sells falsely labeled maple syrup at a roadside stand for cash,[7] but how many such cases are there? In fact, how many cases are there altogether involving the false labeling of maple syrup? And why should state or local law enforcement authorities not be responsible for such (to mix metaphors) small-potatoes cases?

True, there are times in which development of a new technology (e.g., cars, aircraft, or telephones) might require Congress to adopt a new law specifically focused on the use of that invention to commit a crime, but maple syrup is hardly a 21st century creation. It also is true that there are times when a new societal consensus develops regarding conduct that already is a crime yet justifies harsher treatment of offenders (e.g., spousal abuse), but there is no such justification driving the MAPLE Act. The people who make, market, and sell genuine maple syrup, as well as the people who enjoy that product, are in the same position that they always have been and are not more hurt by fraudulent sales today than they were 20 or 30 years ago. As a result, it is quite difficult to see what good this new fraud statute could accomplish other than giving those in the maple syrup industry a federal fraud statute of their own.

Is that a sufficient reason for another dose of punishment? The answer is “No.” There are ample criminal laws on the books to deal with this problem. Adding this new one is just overkill.[8] If this were football, the referee would throw a penalty flag for unnecessary roughness. Keep in mind that the punishments imposed under this statute would enhance the penalties that can be imposed on offenders today: The sentence for this crime can be tacked onto the sentence for mail fraud (up to 20 years’ imprisonment) and wire fraud (up to 20 years’ imprisonment) and whatever else the prosecutor can charge.[9] Are maple syrup felons sufficiently heinous that they should be imprisoned for perhaps as long as 45 years?

Finally, consider the example that this bill would create. As the late Professor William Stuntz has explained, legislators and prosecutors like to double up on the penalties for the same conduct and, to do so, prefer to use existing laws as precedents for future ones.[10] Consider, then, the new raft of statutes that this legislation could spawn: False labeling of Iowa corn, Virginia peanuts, or Coney Island hot dogs soon could become separate federal offenses. Selling phony replicas of the Statue of Liberty, Wrigley Field, the Golden Gate Bridge, the St. Louis Arch, the Louisiana Superdome, and a host of other replicas each could be made its own crime.

Of course, fraudulent conduct should be deterred or punished, even stopped if possible; no one would disagree. But is a sledgehammer needed to accomplish that goal? Put aside the harm done to the offender and his family (an unfortunate, but nonetheless inevitable, example of the collateral damage done by criminal sentencing). What marginal retributive or deterrent benefits do such new criminal laws provide? If the answer is none—and it most likely is—then such laws would be all cost and no benefit.

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


An Era of Overcriminalization

Originally published by Charles Koch Institute | January 1, 2015

Case: Yates v. US

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?

  1. The growing volume of laws and regulations carrying criminal penalties makes it nearly impossible to discern what is and is not a crime.
  2. 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.
  3. 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.


Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law

Originally published at The Federalist Society by Ronald A. Cass| December 16, 2014


Criminal law is the biggest, scariest tool in the arsenal of governmental powers: it can result in loss of property, loss of freedom, and even loss of life. That theme is repeated through history and literature, as readers of Crime and Punishment,1 The Count of Monte Cristo,2 The Gulag Archipelago,3 or countless other works from countries around the world understand.  Criminal law is the means by which government’s coercive power over those within its domain ultimately is effected?either through the direct imposition of criminal punishments or the threat of their imposition.4  It is also a power that is brought to bear through retrospective action; the application of criminal punishments inevitably depends on determinations of fact respecting past conduct and of the fit between facts and legal rules.  Rules governing the criminal law are announced in advance, but their enforcement depends on decisions made after the conduct occurred, determining whether the conduct will be a basis for criminal prosecution, on what terms, with what energy, and ultimately whether the conduct violates the law and what punishment will be assessed.

Because it poses the gravest threat to individuals’ lives, liberty, and property, criminal law traditionally has been circumscribed in special ways.  The essence of the rule of law is the reduction of official discretion to the point that exercises of official power are predictable in advance—independent of the particular official wielding that power—by those to whom the law’s power is directed.5 The development of law in nations that adhere strongly to the rule of law very largely has been built on the foundation stone formed by an accretion of rules constraining criminal power—precisely because it is the power that is essential to tyranny.6

The same appreciation is evidenced in the construction of government in the United States.  The background understanding is illustrated in the justification offered by Alexander Hamilton for the special protection of trial by jury in criminal cases.  Although Hamilton’s purpose in writing the essay that appeared as Federalist No. 83 was to combat assertions that the proposed Constitution abolished rights to civil trial by jury, his essay also underscored the difference those in the Framing generation saw between civil and criminal law:

I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings.7

With that difference in mind, governments in the United States have adopted special rules that restrict the ways in which criminal sanctions can be announced, tailored, and applied.  Prohibitions on ex post facto law-making (attaching criminal punishments to conduct not unlawful at the time)8 and on bills of attainder (creating special punishments for specific, identified or readily identifiable individuals),9 acceptance of special rules of procedure and burdens of proof and persuasion (for example, the presumption of innocence, protections against coerced testimony, requirements of unanimity for criminal conviction, safeguards against double jeopardy)10—all of these are devices for protecting citizens against the unchained and unchecked criminal law power of the state.  So, too, is the long-standing requirement that laws be reasonably knowable in advance, either because they deal with matters of such basic morality that every sentient being can be presumed to understand the nature of the law’s prohibition (e.g., unprovoked killing, theft, assault) or because the person against whom the law is being enforced had every opportunity and incentive to know the law.11

More recently, however, both practical and doctrinal changes have significantly reduced the degree to which criminal punishment fits rule-of-law ideals.  Although far from the only cause, the expansion of criminal sanctions as a by-product of an extraordinary explosion in administrative rulemaking that is backed by criminal liability has helped propel this change.  While there are reasons to support criminal enforcement of administrative decision-making, the ways in which administrative rules are adopted, applied, and enforced and the scale of governmental law-making (including administrative rule-making) that has provided the grounds for potential criminal penalties have produced a massive increase in government power that risks serious erosion of individual liberty. This change cries out for immediate attention—and for changes to the law. 

Admittedly, discussion of overcriminalization, like discussion of “tax loopholes,” to some extent is a matter of perspective.  Many commentators have noted that a loophole is a deduction the speaker dislikes (even if those who benefit from the deduction loudly applaud it).  In the same vein, any list of criminal penalties (specifically or generically) that make for the excessive use of criminal law—in other words, what constitutes the “over” in overcriminalization—certainly is debatable.12  And some scholars believe that focusing on the growing array of statutory and administrative provisions that can give rise to criminal punishment misleads in comparison to the set of cases for which charges actually are brought.13  But what should not be debatable is the understanding that a problem now exists and that its continuation threatens the rule of law.14  No matter which provisions and doctrines seem beneficial in particular settings, concern over the current state of the law—and even more, its direction—should be common ground.

This paper begins with a brief review of the contrasting approaches of criminal law and administrative law—the traditional rules of criminal law and process that provide protections against misuse of government power and the basic predicates animating delegation of authority to administrative decision-makers, circumscribing their exercise of authority, but also generally facilitating administrative exercise of authority.  The paper then discusses experience with statutory and administrative rule generation and application, explaining how differences between administrative law and criminal law play out in these contexts. 

Special attention is given to tensions between the bodies of law (on paper and in practice) and discretion-limiting principles associated with the rule of law. While accommodations for both administrative law and criminal law have been worked out that have been generally satisfactory—that have gained broad acceptance in the United States and other law-bound nations—modern realities increasingly have allowed exercises of power that strain the limits of the rule of law.  This is particularly evident in the expansion of criminal penalties (driven in substantial part by administrative rulemaking) and of the discretionary power exercised by officials entrusted with enforcement of criminal laws.  Debate focused on the frequency of prosecutions misses the point that even relatively rare applications of criminal enforcement powers can have significant effects, given the common trade-off between frequency of enforcement and magnitude not only of penalties but also of officials’ discretionary power respecting enforcement choices.  Changes both to laws and judicially-constructed doctrines are needed to protect against potential abuse of government power.

I. Criminal Law and Administrative Law: A Tale of Two Cities

An enduring metaphor in American political discourse is that of the “city on the hill.”  Its original use in America by John Winthrop, first Governor of the Massachusetts Bay Colony, as well as its Biblical antecedent, denotes a place of special visibility where flaws cannot be hidden and where, hence, there is special reason for charity, compassion, and cooperation.  In a similar vein, the “cities” represented by our criminal and our administrative processes, as provinces of especially important applications of government power, should be especially subject to scrutiny and, ideally, should embody the citizenry’s highest ideals for the exercise of government power.  The bodies of law that undergird these two cities, however, are not the same—they address different needs, start with different predicates, and have been subject to different stresses and distortions.  It is helpful to begin with the basic assumptions framing these bodies of law.

A. Predicates for Criminal Law

The primary principles that describe criminal law can be captured in a very limited set of restraints on the substance of criminal prohibitions and a relatively expansive set of limitations on the application of criminal laws. 

1. Substantive Limits 

Substantive constraints include proscriptions on singling out specific individuals for special punishment—the passage of bills of attainder, which the Constitution makes unlawful for the states as well as for the national government15—on imposing retroactive punishments (also constitutionally prohibited for state and national government),16 on cruel and unusual punishments,17 on vaguely defined crimes,18 and on penalties that are overbroad because they attach to constitutionally protected conduct as well as to conduct legitimately subject to criminal punishment.19  These limits on substantive criminal law essentially boil down to two basic concerns that share a single root: notice and generality.20 

2. Notice       

First, constitutional rules restrain uses of the criminal law that can’t be predicted by those subject to the law, who then are deprived of meaningful opportunity to conform their conduct to the law’s requirements.  That is the burden of prohibitions on ex post facto laws, on vague laws, and to a large degree on overbroad laws as well, where the boundary between the permitted and prohibited cannot readily be known in advance.  These are ancient requirements for criminal punishment and quintessential protections against tyranny; they were known before the time of the Roman emperors, though circumvented by Emperor Caligula’s reported practice of having his new laws written in small characters and posted high up where they were difficult to read.21  The fact that this was seen as a radical departure from accepted requirements for the law underscores the importance of notice to the legitimacy of criminal punishment.  The notice concern also accounts for the recently reinvigorated rule of lenity, requiring that rules subject to criminal penalties should be construed narrowly and any ambiguity should be resolved in favor of the individual or entity charged under the law.22

3. Generality 

Second, constitutional rules also restrain deployment of the criminal law in ways that either expressly place special punishments on particular individuals or are particularly likely to facilitate such special, targeted punishments. The prohibition on bills of attainder is clearly aimed at this sort of manipulation of criminal sanctions to punish those who are enemies of the officials wielding government powers.  So, too, however, are restrictions on overbroad laws (where the application of the law almost certainly will be selective) and on cruel and unusual punishments (a provision that notably requires the penalty to be not only especially harsh but also uncommon).23  As with notice requirements, generality requirements are important protections against tyranny: when sauce for the goose also is sauce for the gander, ganders are far less inclined to be throwing geese in the pot.24 

4. Process Limits

In addition to the nature of the laws themselves, the process of applying the criminal law traditionally has been subject to a substantial number of rules designed to prevent wrongful convictions and to restrain abuses of discretion by those charged with enforcing the law. 

5. Combatting Wrongful Convictions  

One of the elementary observations every first-year law student hears is that society views the risks of wrongful convictions and wrongful acquittals as asymmetrical, with conviction of the innocent carrying greater social weight.  This asymmetry explains a great many special rules of criminal procedure.  A non-exhaustive list would include the following: criminal convictions, unlike civil jury verdicts, require unanimity; defendants are presumed to be innocent, so the prosecution bears the burden of persuasion and the burden of proof; defendants have the right to decline to provide testamentary evidence; potentially prejudicial information (respecting matters such as a defendant’s prior convictions) is kept from jurors.  In all these respects, the playing field in criminal processes is tilted in favor of the accused.

6. Restraining Discretion  

The other leg of limits on criminal law enforcement targets abuse of discretion.  Safeguards such as the prophylactic Miranda rule specifying particular sorts of warnings to suspects (restricting the way police can gather evidence),25 the Brady requirement that prosecutors share exculpatory evidence (which limits discretion in the characterization of available evidence),26 the prohibition on double jeopardy (which prevents strategic decisions on what evidence to utilize and restricts game-playing in trials),27 and the guarantee of a speedy and public trial (which constrains manipulation of the timing and conduct of trials)28 can be seen as efforts to restrict possible abuses of law enforcers’ discretionary choices.  If everyone receives the same warnings, the same evidence, and the same protections against manipulative re-trials, the range of opportunities for abuses of law enforcement discretion is reduced.

The system does not, of course, eliminate discretion.  Indeed, one of the central attributes of the criminal law system as traditionally conceived is the assignment to law enforcement officials of discretion not to pursue particular suspects, not to arrest or charge them, and not to prosecute.  The law does not incorporate a requirement that all crimes are investigated, all suspects are pursued, or all persons who seem likely to have committed crimes are prosecuted.  No one would want to require prosecution or arrest of individuals who, after inquiry, seem not to have committed a crime, or seem not to have had the requisite state of mind to satisfy elements of the crime, or whose circumstances make the crime less blameworthy (for example, the 96-year-old great-grandmother who shoplifts a can of tuna).

Prosecutorial discretion is defended principally on two grounds. The first is pragmatic: law enforcement resources are invariably finite and, in any society with more than a very small number of crimes choices must be made respecting the way to use those resources.29  The second justification for prosecutorial discretion is grounded in the concept of legality.30  Officials charged with investigation and prosecution are separated from those charged with evaluating the case against an accused; conduct of law enforcement officials in deciding which cases to bring (especially which not to bring) is checked by their supervisors or by the public that selects officials who are ultimately responsible, while the decision to bring charges is checked by the requirement that prosecutions must pass scrutiny from officials (and private citizens) who are not subject to the same personal or political imperatives.  In other words, bring a bad case, you lose, and you may also lose favor with your bosses or the public for wasting public resources. 

In the end, law enforcement discretion is retained as essential to the functioning of a system where complex judgments are needed, but the whole thrust of the system (at least at the level of legal doctrine) is to constrain, channel, and check discretion to guard against the sorts of serious problems that can arise where personal liberty, property and even life are at risk.31

B. Predicates for Administrative Law: The Basics

The basic predicates for administrative law look very different from those underlying criminal law:  in contrast to the more “target sensitive” character of criminal law predicated on concerns about potential misuse of government power, administrative law places greater emphasis on providing leeway for agencies to implement laws within their purview in ways the implementing officials think best.  If criminal law leans toward restraining conduct that expands the chances for punishments that respond to particular officials’ inclinations regarding individual enforcement targets or that are less readily anticipated by those subject to the law, administrative law leans toward providing scope for official judgments within a broad legal framework. 

Administrative law is not concerned in the main with extraordinary impositions on individual citizens.  Instead, its domain is the set of procedures appropriate to the functioning of government agencies with broad mandates to facilitate conduct that is seen as publicly beneficial (encouraging conservation efforts or public health initiatives or promoting innovation through award of patents, for example), to move resources more directly toward uses that are desirable (supporting labor training programs or infrastructure building or repair or providing direct assistance to specific beneficiaries, as with programs such as Social Security, Medicare, or various programs for military veterans), or to regulate activities that can conflict with public interests (an endless list of mandates for the “alphabet” agencies: the CPSC, FCC, FERC, FTC, ITC, SEC). 

The difference between the two fields follows from the difference in their focus. The fundamental character of one body of law is mostly restraining, the other mostly enabling.

This does not mean that administrators are free simply to do as they like.  As with criminal law, administrative law imposes a variety of constraints on official action, both substantive and procedural.  Agency action must be authorized by particular statutes, and the first constraint on administrative officials is found in the terms of the laws that set the limits around specific administrative action. 

Apart from specific enabling legislation, the law contains numerous generally applicable rules for proper performance of administrative functions?including, for example, mandated separation of certain functions,32 procedural requirements for making administrative rules and for adjudicating disputes within an agency’s purview,33 and provisions for making information held by an agency publicly available (through open meetings or ex post disclosures).34  Much significant agency action follows from rulemaking proceedings that are designed to resemble legislative processes or from adjudicative proceedings that are more or less similar—at times, quite similar—to those followed in courts.  And most administrative action also is subject to scrutiny both within the agency and, if it is significant, by others through the executive review process (run through the White House’s Office of Information and Regulatory Affairs), various mechanisms for inter-agency coordination (which can perform roles similar to, though not formally constituting, review), and judicial review.35 

1. Imaginary Limits on Real Power

Procedural requirements and review can provide powerful constraints on official power.   But the constraints only work to the extent that they in fact provide effective limits on agency actions.  While some of the ways in which official authority is restricted provide meaningful checks, and in select instances have been very important sources of limitation, more often the obstacles to untoward exercises of official discretion have proved speed bumps instead of stone walls.

2. Nondelegation

One of the potentially most important restraints on official discretion is the “nondelegation doctrine.”  The doctrine sensibly states as “a principle universally recognized as vital to the integrity and maintenance of the system of government constrained by the Constitution” that “Congress cannot delegate legislative power.”36  This straight-forward interpretation of Article I, Section 1’s declaration that “ legislative power” granted by the Constitution “shall be vested in a Congress” makes perfect sense, but has made little difference to the scope of authority given to other officials.  The case that gave the classic formulation to the doctrine, Field v. Clark, approved a law giving the President the power to impose duties on a variety of imported goods “for such as time as he shall deem just” if and when he decided that the nations exporting those goods treated imports from the U.S. in a “reciprocally unequal and unreasonable” manner—hardly a precise or constraining directive.37 

The Supreme Court also has approved numerous other delegations of authority on the ground that the assignments were not of legislative power but of administrative authority, even if they give extraordinary scope for policy choices by administrators, such as the instruction for the FCC to hand out licenses to spectrum users “as the public convenience, interest or necessity requires.”38  The test is whether the Court divines in the governing law “an intelligible principle to which the person or body authorized to [act] is directed to conform.”39 As the Court’s decisions over the past century make clear, “intelligible” does not mean that Congress has done the hard work of deciding what competing public interests should be taken into account, much less the harder work of resolving the inevitable differences among them.40

3. No Delegation  

Similarly, courts might constrain administrative discretion by narrowly construing the ambit of authority granted to the agencies.  In particular, courts might insist on very clear delegations of authority to an agency to act in respect of a particular matter—to assert general authority to address a given topic, to direct its actions to a given set of enterprises or activities, to embark on a particular course of regulation (rate-setting, for example)—even if the lack of a meaningful nondelegation doctrine does little to put bounds around the actual terms of the authorization Congress gives the agency.  This occurs on occasion.41  But courts also have allowed agencies to assert authority over matters when there was no express grant of authority, even confirming agency authority so unclear that the agency had denied it had that authority and had sought unsuccessfully to attain express congressional authorization before changing course and asserting that the authority had existed all along.42

For instance, for many years the FCC denied it had authority to regulate cable television, which fit neither within the grant of authority over telephone and telegraph wire common carrier functions nor within the grant of authority over allocation of spectrum use by radio, television, and other over-the-air services.  When the FCC failed to get Congress to grant authority over the burgeoning cable TV industry, it discovered that the authority existed anyway under an administrative analogy to the Constitution’s “necessary and proper” clause—no matter how unnecessary or improper the actual regulations.  The Supreme Court approved the assertion of authority under a very questionable rationale, an approval that has encouraged further efforts to extend FCC authority ever since.43 

Just as the current version of the nondelegation doctrine grants Congress substantial room to assign scope for discretionary policy choices to administrators, courts commonly allow leeway for agencies to exercise discretion in determining the scope of their assignments.44

4. Deference  

Perhaps the clearest example of the leeway given to administrative officials generally is encapsulated in the Chevron doctrine.45  Chevron declares that, when agency action is challenged as inconsistent with its statutory instruction, courts ask first if Congress has “directly spoken to the precise question at issue.”  If so, that is binding; if not, courts are directed to defer to any reasonable agency interpretation of the law.46   The assumption behind Chevron deference is that courts would have to defer to administrative policy choices if Congress expressly gave authority to make such choices to the agency; by analogy, the Court stated that Congressional failure to specify a precise answer to a policy question can constitute an implicit delegation of authority.47  Judicial failure to defer to reasonable agency interpretations of law in such settings would overstep judicial bounds.48

The Supreme Court has argued endlessly over details of the Chevron test and its application, and it has referred in some cases to older tests for deference as well.49  Scholars have argued over whether Chevron has raised even further the traditionally high degree of deference given to administrative decisions and whether the costs of litigating (and anticipating) applications of the Chevron rule are worth whatever is gained in administrative efficiency or fidelity to law.50  But the bottom line is that under any of the iterations of the deference canon, judges generally have been supportive of administrative exercises of discretion even on questions that are so close to the law-interpreting role assigned to courts as to be virtually indistinguishable.

II. Law-Making, Administration, and Prosecution

Differences between the two bodies of legal doctrine described above respond to different expectations about the critical function to be served by each.  The divergence in expected orientation of criminal and administrative law—between focusing on specific conduct so outside the realm of the acceptable as to be criminal and focusing on handing out benefits to large numbers of recipients, processing patent applications or tax returns, licensing pipelines or television stations, regulating food and drug offerings, and the like—is reflected in different expectations about rule-generation.  Differences in the visibility and frequency of rule-generation also have important implications for the acceptable means of giving rules effect, of the sorts of mechanisms appropriate to assure compliance with them.  Use of the criminal law, as shown below, to enforce an expanding array of administrative rules has unfortunate consequences.

A. Rule-Generation

1. Law-Making and Rule-Making

The initial difference so far as rule generation goes is that rules setting out the basis for criminal sanctions traditionally have been products of legislative enactments.51  Administrative rules, on the other hand, have dealt with all sorts of specifications of what those subject to the particular agency’s jurisdiction must do or not do, how the agency will conduct its business, what its interpretation of its governing mandate is, or how it balances policy considerations urged as relevant to resolution of a specific problem. 

The two sources are not equally suited to quick or prolific rule-generation. Despite recent complaints about “gridlock” and the fact that the Framers self-consciously designed the U.S. Constitution to be more amenable to decisive action by the national government within its allotted sphere, the Constitution also was very much devised as a governance regime whose combination of checks and balances were calculated to inhibit action that did not have strong support across a variety of political sources and regions.  In other words, it was intended to delay action until it had been carefully considered, to frustrate tyranny of the majority as well as of smaller factions.52  The default position was, thus, for the national government to take no action.

 In contrast, administrative rule-making is designed to be relatively expeditious, with “some action” instead of “no action” as the norm.  There are relatively few procedural requirements, and these mainly were conceived as modest prods to fair and effective government rather than as high hurdles that agencies would surmount only with considerable difficulty.53  The public pronouncement initially required of agencies proposing rules was not an elaborate advance explanation and lengthy marshaling of evidence but a simple notice of “either the terms or substance of the proposed rule or a description of the subjects and issues involved.”54  Similarly, the rule itself did not need a full explication of its operation but only “a concise, general statement of [the rule’s] basis and purpose.”55 

As the subjects committed to agency rule-making have expanded and the magnitude of the effects from agency rule-making have increased, additional requirements—judicial, legislative, and executive—have been layered on top of the initial ones, leading some commentators to complain that federal rule-making had become “ossified” and unworkable.56  Undeniably some new and significant requirements have been added to what agencies must do in rulemaking, including those imposed by the Paperwork Reduction Act, the Regulatory Flexibility Act, and the Unfunded Mandates Reform Act.57  But other, much discussed demands on the agencies are not formally necessary to rulemaking.  For example, courts at times have asked for more complete explanation of the basis for a new rule when reasons given in support of the rule did not counter objections that were supported by substantial information in court filings.58  In other words, these were not general requirements for making rules but evidentiary requirements for justifying rules once the initial burden on the party challenging the rule was met. 

For rules of major economic or political importance, the difference may be slight in practice,as there is apt to be a challenge backed by substantial information about the weaknesses of such rules in virtually every case, but that does not affect the vast majority of rules—and it isn’t terribly unreasonable to expect that when rules have a major economic impact, the officials adopting them should be able to explain the rules’ basis in something other than conclusory terms.  However, for government agencies imposing burdens on others than can run to billions of dollars annually, it seems entirely sensible to expect something more than the equivalent of “because I’m your mother and I say so!” 

2. Laws, Rules, and Crimes

Despite the increased justification required for rules, at least in some settings, there has not been a real rulemaking deficit. In fact, rules have been pouring out of federal agencies for decades.  Federal agencies issue between 3,000 and 5,000 new rules in a typical year, covering between 20,000 and 40,000 pages annually in the Federal Register.59  In comparison, Congress typically passes between 200 and 400 laws each year, though outliers have varied significantly on either side of those figures.60

This disparity in rule-creation poses special problems in connection with criminal law, dramatically exacerbating the issues associated with large numbers of federal crimes.  The exact numbers are disputed—and almost certainly unknowable with any degree of precision—but it is clear that the number of provisions that carry criminal punishment has grown dramatically over the past 50 years, and especially over the past 25 years.61  The increase has come partly from increasing resort to criminal penalties in statutes.  Estimates of the number of federal laws containing criminal sanctions generally place the figure in the range of 4,000-5,000.62  The (primarily political) reasons behind the increasing use of criminal penalties have been explored by others;63 for present purposes, it suffices that the pressures for criminalizing a range of activities—including considerable conduct about which views on propriety, much less criminality, differ?and for bringing an expanded array of crimes within the federal sphere do not seem to be abating. 

Even as statutory criminal provisions are proliferating, far more new rules backed by criminal sanctions have come from administrative bodies.  The number of criminally-enforceable, administratively-generated rules is estimated at between 10,000 and 300,000.64  Such a wide spread in the estimates indicates that there are different ways of counting—entire rules, for example, versus separate provisions that contain prohibitions of, or requirements for, particular actions, each backed by potential criminal liability.  By way of comparison, one review puts the number of “individual regulatory restrictions” contained in existing federal regulations at more than one million,65 a figure that would make the larger number of criminally enforceable rules understandable as separate regulatory requirements, rather than entire rules.  It also suggests that roughly a third of all federal regulatory requirements are enforceable through criminal prosecution, a staggering number for a system of administrative rule-making that is built on flexibility for and deference to decisions of unelected officials.

Whatever the exact number of rules, it is clear that finding all federal criminal provisions would require a truly daunting search.  If focused strictly on statutory enactments, the search would cover 51 titles and more than 27,000 pages of the U.S. Code, while looking for the whole body of potential criminal offenses flowing from administrative regulations would necessitate going through nearly 240 volumes of the Code of Federal Regulations spread across roughly 175,000 pages—and that was as of four years ago!66  Even for speed-readers who can master turgid prose and have a taste for tedium, that’s quite a research project.

B. Rule-Application

The enormous size of the corpus of legal materials containing federal criminal laws and administrative rules with the force of law, wholly apart from any sources of authoritative explanations or interpretations, has substantial impact on the way the federal criminal law should be applied—think of this as what follows when the skinny high school kid balloons into a sumo-size grown-up.  Two sorts of problematic prospects in particular follow from the way this body of criminal law has grown: penalizing the reasonably unaware and expanding discretion for law enforcers.  Both of these developments threaten the rule of law.

1. Ignorance of Law in a Law-Rich World

First, conviction under the criminal law traditionally has required that the defendant either know or should have known that his conduct violates a legal requirement.  So, for example, common law crimes in Anglo-American law—such as murder, mayhem, rape, robbery, assault, or arson—required behavior combined with intentionality that together so obviously violated accepted norms of behavior as to give fair warning of what conduct would prove criminal.  Where statutory crimes were not defined in ways that gave similar notice, as happens where criminal laws are vague, judges customarily have held that conviction under the laws violated standards such as due process or the Sixth Amendment’s requirement of notice of the nature of the accusation being made.67  The notion is captured by Justice Sutherland’s observation, writing for the Supreme Court in rejecting criminal charges for a government contractor accused of paying wages too low in relation to those “prevailing” in the “locality:”

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.68

In the same vein, judges have remonstrated that “men of common intelligence cannot be required to guess at the meaning of” a criminal law.69

Most discussion of the issue of “fair warning” has focused on the degree to which laws are written clearly enough to pass muster.  But other cases have turned to questions apart from the actual statutory text.  On occasion, courts have asked how much uncertainty in a law’s text can be cured by explication of its meaning by courts or other authoritative sources.70 

Judges also have asserted that requirements of criminal intent can cure vagueness, as where the law requires that a defendant has “willingly” or “intentionally” engaged in conduct.71  Certainly, eliminating mental states (some form of intentionality) as elements in criminal law can aggravate “fair warning” problems.  If the conduct is not sufficiently well defined to satisfy the “fair warning” requirement, however, the fact that the conduct actually engaged in was intended cannot provide notice that the conduct is criminal.72  Knowing that you’re doing something and intending to do it is not the same as knowing that what you are doing is criminal and intending to do it anyway.

This moves us closer to the heart of the problem: the more serious issue usually is not the clarity of the law standing alone but whether there was a reason to expect the defendant to have known of the law in the first place.  Taking these issues together, the question is whether there is a reason for the defendant to have known that the law applied to the sort of conduct that the defendant contemplated.  The assertions made in numerous cases today are that it is not reasonable to interpret a rule in a given way and, in the event the disputed interpretation is adopted, that the defendant should not be charged with responsibility for a violation he could not have foreseen. 

That is the claim, for example, in Yates v. United States, which will be argued next Term in the Supreme Court.73  Yates, who operates a fishing boat, was charged under a provision of the Sarbanes-Oxley Act74 for throwing several red grouper (possibly measuring less than 20 inches long) overboard to prevent federal officials from proving that his crew had caught undersize fish.  The provision, titled “Destruction, Alteration, or Falsification of Records in Federal Investigations and Bankruptcy,” applied to anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . .”75  Yates argues that it isn’t reasonable to view the law as applying to someone throwing fish overboard as opposed to shredding or destroying documents (whether on a computer or on a physical medium such as paper or a disk).  He also says that it isn’t reasonable to expect a fishing captain to know the details of Sarbanes-Oxley, a 66-page long act introduced as the “Corporate and Auditing Accountability, Responsibility and Transparency Act of 2002,” codified at various sections scattered across the U.S. Code.

The courts frequently reject assertions such as Mr. Yates’ by invoking the maxim that ignorance of the law does not excuse, but the doctrine makes far less sense in the current, law-rich world than when laws were largely congruent with morality, were widely known to everyone in the community (or everyone likely to encounter the law), or reasonably should have been known by someone in a profession or business as a rule specifically applying to that profession or type of business.76  When there are tens of thousands or hundreds of thousands of rules backed by criminal punishment, it is unrealistic to suppose that enforcement targets know all of them. 

Ordinary citizens almost certainly have no idea of many of the criminal prohibitions and criminally-sanctioned requirements they might encounter, and even businesses that use highly paid legal counsel may not be able to keep up with all of the rules and regulations that could apply to them.  The much-criticized Lacey Act, which criminalizes trade in wildlife or plants that were taken in violation of state, tribal, or foreign law,77 is just one example of a law that almost certainly makes criminal conduct that almost no one could predict.  Its core may be prevention of conduct that is visibly unlawful—poaching alligators in Florida for sale in New York or trading in ivory from illegally taken elephant tusks—but the full scope of conduct made criminal under the law is almost unfathomably large.78  While commentators and judges have proffered several reasons to support the ancient maxim on ignorance, none sensibly justifies extending criminal punishment to individuals who are reasonably unaware of the law.79  In a world where the scope of criminal law is so amazingly large, most of us are reasonably unaware of a great deal that could land us in jail.

2. Implications for Prosecutorial Discretion

The ultimate response to concerns of overcriminalization is that prosecutors will not bring charges against the reasonably unaware, but instead will spend their time targeting people and enterprises that are engaged in conduct known to be unlawful.  One defense of current law starts with the proposition that federal criminal law is the tail of criminal enforcement and that everything other than cases involving drug offenses, immigration, and weapons charges lies at the tail of federal enforcement.80  Concerns about charges based on odd or unknowable laws—use of Woodsy Owl’s or Smokey the Bear’s likeness, for example, two of the many crimes listed in the American Bar Association’s report on the federalization of criminal law81—assertedly are exaggerated because federal prosecutors are as unlikely to know (and to try to use) those laws as defendants are to know them.82

The problem of prosecutorial discretion in a world with such massive numbers of criminal prohibitions and regulations, however, is not that there is apt to be a surge in prosecutions for trivial or obscure crimes.  Instead, the problem is that prosecutors, who enjoy the option of choosing whom to charge with which crime and how many crimes to charge, now are given so expansive a range of potential charges that their discretionary power is greatly magnified.83 Imagine that you’re a student facing an important test; you know 70 percent of the questions will come from three important chapters in the book; the rest of the questions will come from the remaining material referred to during the course.  Does it matter if that material covers 175 pages or 175,000 or 1.75 million pages? Does it matter if the teacher gets to select not just the questions but which students will be asked to take the test?  I have no doubt how my high-school-age daughter and her friends would answer those questions.

Having the opportunity to select enforcement targets and to charge them with a very large number of crimes with potentially huge cumulative penalties gives prosecutors a weapon not all will use and in all likelihood none will use routinely.  The defendants who are on the receiving end of such charges may be selected for reasons that seem laudable; the prosecution and conviction of Al Capone for tax evasion, for example, was widely applauded.  There may be good reason to accept the assurance that prosecutors in general will behave in ways that are consistent with reasonable expectations.

But a focus on the typical rather than the possible—a good analytical instinct in many instances—misses the most important point here.  Giving a set of government officials such a potent weapon, one that they are likely to deploy against a very small subset of possible targets, creates a dramatic opportunity for discretionary choices to be made on less attractive bases.84  Where enforcement is necessarily highly selective, penalties often will have to be increased if enforcement is to be effective; this means that a few people or entities will be charged with crimes for which high penalties are possible but for which most offenders will not be prosecuted. 

Further, highly selective enforcement, if it is to affect underlying behavior, cannot reveal the bases on which enforcement targets will be selected—imagine the IRS announcing which deductions of what magnitude will cause the agency to audit tax filers.  The result is that the basis for selecting a small number of potential targets for prosecution is not visible to, or predictable by, the public.  That sort of discretion, which is largely insulated from significant sources of constraint in individual cases, is antithetical to the rule of law. 85

The problem is even greater than might first appear, thanks to other features of the current criminal law system.  The ability to threaten defendants with multiple charges, many involving few defenses of the sort common in traditional crimes (defenses keyed to absence of culpable mental states, for example), and to confront them with a risk of staggering potential prison time or financial cost or both, allows prosecutors to pressure defendants to settle rather than to fight, to enter a plea bargain that admits guilt (whether it truly existed or addressed conduct that was truly wrongful in any meaningful sense), and to take a small punishment.86 

Worse yet, if the risk is large enough—if the penalties that are threatened are sufficiently draconian—and the costs of litigating high enough, defendants might accept quite harsh punishment, even when they believe they’ve done nothing wrong and are confronted with criminal charges of which they’ve had no fair warning.87  The real issue in the Yates case is not whether the defendant did something wrong; it’s whether the prosecutor should have free rein to charge a crime that seems so far removed from the conduct at issue, one drawn from a law targeting corporate accounting, not catching undersized fish.  What is even more unusual than the charge in the Yates case is that the defendant found an ally to help fight the government, where the overwhelming majority of defendants settle to avoid the cost and risk of contesting these cases.88

The increase in plea bargains in place of trials has another downside: it reduces the effective check on prosecutors.  The defense of prosecutorial discretion historically has been both its necessity in a world of limited resources and its subjection to the check of judicial processes for cases that go forward.  As the number of cases that go through the judicial process dwindles, that argument loses force.  Prosecutors are free to bring charges without having to prove them in court.  Of course, wholly baseless charges that cannot be sustained are not likely to exert much pressure on defendants; but arguably sustainable charges, even if based on weak and contestable grounds, combined with a large number of charges with at least a slight prospect of success can suffice to pressure defendants to settle.  High potential costs of litigation combined with some risk of conviction and huge potential penalties often are enough to do the trick.

III. Conclusion

Growing numbers of federal crimes, driven largely by the immense number of administrative rules that are criminally enforceable, have created a serious problem for anyone committed to the rule of law.  The typical prosecution may be justified and the typical prosecutor may be well behaved, but changes in the law have increased the risk of prosecutors bringing charges against people who have done nothing wrong, or nothing seriously wrong—nothing that traditionally would have been thought of as criminal—and selecting the number and nature of charges in a way that puts extraordinary pressure on defendants to agree to a plea bargain. 

The morphing of administrative law doctrines (which are relatively deferential to exercises of government power) with criminal law (which long was characterized by skepticism of assertions of government power and by rules designed to constrain that power) has reduced historic protections for criminal defendants.  It particularly has diminished prospects that defendants will be protected against charges of violating rules that are neither self-evident nor matters a given individual reasonably should be expected to know, the requirement of “fair notice” that repeatedly has been acclaimed as an element of due process.89

Courts do not need to require actual knowledge of criminality to make the “fair notice” concept meaningful, but they do need to recognize that without knowledge or culpable ignorance “fair notice” is a myth.  By the same token, Congress should place clear limits on the power it gives administrative officials to create criminally-enforceable rules.  However much observers may applaud a given use of administrative rulemaking and criminal enforcement, it is critical to understand the growing risk to liberty from giving officials unchecked power to use the criminal law by selecting from an open field of potential charges as they see fit.  Attention to small risks—not complacency that they have yet to materialize—is the legacy of aspiring to be the “city on the hill” envisioned by those who lay the foundations for our nation.


1  Fyodor Dostoevsky, Crime and Punishment (Constance Garnett trans., Penguin Books 1952; orig. pub. 1866).

2  Alexandre Dumas, The Count of Monte-Cristo (Robin Buss trans., Penguin Books 1996; orig. pub. 1844-1845).

3  Aleksandr Solzhenitsyn, The Gulag Archipelago (Thomas P. Whitney trans., Harper & Row 1973).

4  In fact, many legal theorists of widely divergent governing views and values agree that the essence of positive law is its coercive nature.  Seee.g., John Austin, The Province of Jurisprudence Determined 5-21 (Legal Classics Library 1984; orig. pub. 1832); Jeremy Bentham, An Introduction to The Principles of Morals and Legislation 330-31 (Hafner Press 1948; rev. ed. orig. pub. 1789); Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986).

5  Seee.g., Ronald A. Cass, The Rule of Law in America 4-19, 28-29 (Johns Hopkins Univ. Press 2001) (Rule of Law); Michael Dorf, Prediction and the Rule of Law, 42 UCLA L. Rev. 651 (1995); Lon Fuller, The Morality of Law 33-94, 209-19 (Yale Univ. Press, rev. ed. 1969); Friedrich A. Hayek, The Road to Serfdom 80-92 (Univ. Chicago Press 1944); Michael Oakeshott, The Rule of Law, in On History and Other Essays 119 (Barnes & Noble Books 1983); Joseph Raz, The Authority of the Law: Essays on Law and Morality 213-14 (Clarendon Press 1979).

6  For example, Magna Carta, the precursor to much of modern thinking about constraints on public power, deals primarily with limitations on powers to take property (a matter then of urgency to the feudal lords who extracted concessions from a very unenthusiastic King John, though of much less interest to the mass of English subjects) and powers to punish those deemed to have offended the King or the King’s law.

7  The Federalist No. 83 (Alexander Hamilton).

8  See U.S. Const., art. I, §§ 9-10.

9  Id.

10  Seee.g., U.S. Const., amends. V & VI.

11  Seee.g., Lambert v. California, 355 U.S. 225 (1957).  The understanding that everyone reasonably should have a sense that certain conduct is subject to criminal penalties (or at least that the conduct of the person putatively subject to the particular penalties might incur criminal sanctions), in fact, provides the strongest rationale for the maxim that ignorance of the law does not excuse.  See, e.g., Ronald A. Cass, Ignorance of the Law: A Maxim Re-examined, 17 Wm. & Mary L. Rev. 671 (1976) (Ignorance of Law).

12  Seee.g., Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 Hastings L.J. 979 (1995); William Stuntz & Daniel Richman, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum. L. Rev. 583 (2005); George Terwilliger, III, Under-Breaded Shrimp and Other High Crimes: Addressing the Over-Criminalization of Commercial Regulation, 44 Am. Crim. L. Rev. 1417 (2007); Daniel Uhlmann, Prosecutorial Discretion and Environmental Crime, 38 Harv. Envtl. L. Rev. 159 (2014).

13  Seee.g., Susan R. Klein & Ingrid B. Grobey, Debunking Claims of Over-Federalization of Criminal Law, 60 Emory L.J. 1 (2012).

14  Seee.g., Sanford Kadish, The Crisis of Overcriminalization, 7 Am. Crim. L. Q. 17 (1968); Terwilliger, supra. Not every observer, however, would concur that the problem in criminal law is “overcriminalization.” Seee.g., Klein & Grobey, supra.

15  See U.S. Const., art. I, §§ 9-10.

16  Id.

17  See U.S. Const., amend. VIII. Apart from a restriction on punishments that are deemed so extreme and so rare that the imposition is almost certain to be used only against specially disfavored targets, the restraint has been interpreted as requiring that punishments be proportional to the crime for which they are prescribed, a test that, controversially, turns on existence of a “national consensus.”  See, e.g., Kennedy v. Louisiana, 554 U.S. 407 (2008).

18  Seee.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

19  Seee.g., Coates v. Cincinnati, 402 U.S. 611 (1971).

20  Not surprisingly, these also are frequently cited as critical inputs to morally justified punishment.  Seee.g., Fuller, supra, at 46-55, 157-58.  These concerns also are often married to concerns about legality (a sense that the proper authority has been the source of the law), but that issue is dealt with separately below in the context of limits on the procedures for enacting and applying criminal laws.  For an introduction to the concept of legality and its relationship to other sources of constraint on criminal law, seee.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189 (1985) (Legality).

21  Seee.g., 1 William Blackstone, Commentaries *46.

22  Seee.g., Burrage v. United States, — U.S. — (2014).  Justices Ginsburg and Sotomayor concurred in the decision specifically on the basis of the rule of lenity (one element of the majority opinion), id., and Justice Scalia long has argued for a reinvigorated version of this rule, see, e.g., Bryan v. United States, 524 U.S. 184, 205 (1998) (Scalia, J., dissenting); United States v. O’Hagan, 521 U.S. 642, 679 (1997) (Scalia, J., concurring in part and dissenting in part).  Not all commentators agree that the rule either is well-considered or is observed much save in the breach. Seee.g., Jeffries, Legalitysupra; Dan Kahan, Lenity and Federal Law Crimes, 1994 Sup. Ct. Rev. 345 (1994).

23  Seee.g., Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J.).

24  I know: ganders don’t eat geese and vice versa, though there might be a peck here or there in the yard.  It’s just a metaphor riding on an aphorism.

25  See Miranda v. Arizona, 384 U.S. 436 (1966).  See also Dickerson v. United States, 530 U.S. 428 (2000).

26  See Brady v. Maryland, 373 U.S. 83 (1963).

27  See U.S. Const., amend. V.

28  See U.S. Const., amend. VI.

29  Seee.g., Sarah Cox, Prosecutorial Discretion: An Overview, 13 Am. Crim. L. Rev. 383 (1976); Robert Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717 (1996).

30  Seee.g., Misner, supra (explaining the legislative abdication of hard choices to prosecutors respecting what laws mean and which criminal provisions are directed at what specific conduct, especially emphasizing instances in which multiple criminal provisions arguably address the same conduct).

31  For a thoughtful treatment of two different models of the criminal process, one based on effective crime control, the other on legal constraints that protect individual liberties, see Herbert L. Packer, The Limits of the Criminal Sanction 150-260 (Stan. Univ. Press 1968).  Professor Packer concluded that many features of our criminal process sound like the second model (what he calls “The Due Process Model”) in terms of legal doctrine, but function more like the first (what he refers to as “The Crime Control Model”). Id. at 174.  It should be noted as well that acceptance of the necessity of a degree of discretion in the criminal enforcement system is not equivalent to endorsement of the degree that exists at present or its exercise by particular government officials or classes of officials.

32  Although administrative agencies often exercise a variety of functions, all combined under the aegis of the agency head (in multi-member bodies, the collective decision-making group of agency members), critically, the individuals who perform functions that might be compromised if combined (such as prosecuting and adjudicating where significant individual claims are at issue) generally are separated and, in formal adjudication, substantially insulated from controls that might compromise their fairness (perhaps even more than reasonable notions of fairness require).  Seee.g., Administrative Procedure Act, 5 U.S.C. §554(d).

33  See id., at 5 U.S.C. §§553-557.

34  Seee.g., Freedom of Information Act, codified at 5 U.S.C. §552; Government in the Sunshine Act, codified at 5 U.S.C. §552b.

35  Seee.g., Ronald A. Cass, Colin S. Diver, Jack M. Beermann & Jody Freeman, Administrative Law: Cases & Materials 97-103,112-229 (6th ed., Wolters-Kluwer Law & Business 2011) (Cass, et al., Administrative Law).

36  Field v. Clark, 143 U.S. 649, 692 (1892).

37  Id., at 680.

38  Seee.g., National Broadcasting Co. v. United States, 319 U.S. 190 (1943).

39  Hampton & Co. v. United States, 276 U.S. 394, 409 (1928) (laying down the “intelligible principle” test and applying it to uphold delegation of broad authority to the President and Tariff Commission to set tariff rates, formerly a legislative function).

40  Seee.g., Whitman v. American Trucking Assns., Inc., 531 (U.S. 457 (2001); Mistretta v. United States, 488 U.S. 361 (1989); Yakus v. United States, 321 U.S. 414 (1944).  For a review of the doctrine more generally, see, e.g., Cass, et al., Administrative Law, supra, at 16-33.

41  Seee.g., Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

42  See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005); United States v. Midwest Video Corp., 406 U.S. 649 (1972); United States v. Southwestern Cable Co., 392 U.S. 157 (1968).

43  The initial Supreme Court approval of authority over cable television is United States v. Southwestern Cable Co., 392 U.S. 157 (1968).  For more recent discussion of FCC efforts to expand its ambit of authority, seee.g., Verizon v. Federal Communications Commn., No. 11-1355 (D.C. Cir. 2014); Comcast Corp. v. Federal Communications Commn., 600 F.3d 642 (D.C. Cir. 2010).

44  For an example of this deference formally applyingthe Chevron doctrine discussed below, see City of Arlington v. Federal Communications Commn., Nos. 11-1545 & 11-1547 (U.S. Sup. Ct., May 20, 2013).

45  See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 476 U.S. 837 (1984).

46  Id., at 842-43.

47  Id., at 843-45.

48  For a more nuanced, but generally sympathetic, account of Chevron deference, seee.g., Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511 (1989).

49  Seee.g., Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009); Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007); National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005); United States v. Mead Corp., 533 U.S. 218 (2001); Babbitt v. Sweet Home Chap. of Communists for a Great Oregon, 515 U.S. 687 (1995).

50  Seee.g., Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779 (2010); E. Donald Elliot, Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts, and Agencies in Administrative Law, 16 Vill. Envtl. L.J. 1 (2005); William Eskridge & Lauren Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083 (2008); Thomas Merrill, Judicial Deference to Executive Precedent, 101 Yale L.J. 969 (1992); Peter Schuck & E. Donald Elliot, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L.J. 984 (1990).

51  That generalization suffices for present purposes, as it has been the case for several hundred years in America and other Anglo-American legal systems, though reaching back into far older times, criminal transgressions were such well-known and universally understood offenses as to constitute common-law crimes or ecclesiastical offenses. Seee.g., James Fitzjames Stephen, A History of the Criminal Law of England, vol. 1 (MacMillan 1883).

52  Seee.g., The Federalist Nos. 10 & 51 (James Madison & Alexander Hamilton).

53  Seee.g., U.S. Department of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947).

54  5 U.S.C. §553(b)(3).

55  5 U.S.C. §553(c).

56  Seee.g., Thomas O. McGarity, Administrative Law as Blood Sport, 61 Duke L. J. 1671 (2012); Thomas O. McGarity, Some Thoughts on Deossifying the Rulemaking Process, 41 Duke L. J. 1385 (1992); Richard J. Pierce, Two Problems in Administrative Law: Political Parity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking, 1988 Duke L. J. 300 (!988).

57  Seee.g., Cass, et al., Administrative Law, supra, at 531-568; Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking (4th ed., American Bar Assn. 2006).

58  Seee.g., Associated Industries of New York State, Inc. v. U.S. Dept. of Labor, 487 F.2d 342 (2d Cir. 1973) (Friendly, J.).

59  Seee.g., Maeve P. Carey, Counting Regulations: An Overview of Rulemaking, Types of Rulemaking, and Pages in the Federal Register 5, 16-17 (Cong. Research Serv., May 2013).  The annual number of rules promulgated has been in the 3,000-5,000 range since the mid-1980s.  The pages devoted to rulemakings in the Federal Register account for something on the order of 40-50 percent of Federal Register pages.   See id., at 16-17.

60  Seee.g., Susan Davis, This Congress Could be Least Productive Since 1947, USA Today, Aug. 15, 2012, available at; Matt Viser, This Congress Going Down as Least Productive, Boston Globe, Dec. 4, 2013, available at

61  Seee.g., American Bar Assn., Section on Criminal Law, Report of the Task Force on The Federalization of Criminal Law, at 6-11, available at (ABA Report).

62  Seee.g., John S. Baker, Jr., Measuring the Explosive Growth of Federal Crime Legislation, 5 Engage 23 (2004) (Study for Federalist Society for Law and Public Policy Studies), available at; John Malcolm, testimony before Over-Criminalization Task Force of H.R. Comm. on Judiciary, Hearing on Defining the Problem and Scope of Over-Criminalization and Over-Federalization, Jun. 12, 2013, at 31, 32-34, available at (HR Hearing: Defining Over-Criminalization).  For an accessible explanation of the difficulty of coming up with an exact number, see Gary Fields & John Emshwiller, Many Failed Efforts to Count Nation’s Federal Criminal Laws, Wall St. J., Jul. 23, 2011, available at

63  Seee.g., William Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001).

64  Seee.g.ABA reportsupra, at 10; Steven D. Benjamin, testimony before HR Hearing: Defining Over-Criminalizationsupra, at 49, 57; John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law,71 B.U. L. Rev. 193 (1991); Malcolm, supra.

65  See Wayne Crews & Ryan Young, Twenty Years of Non-Stop Regulation, Am. Spectator, Jun. 5, 2013, available at

66  See Crews & Young, supra (calculations based on 2010 figures).

67  Seee.g., Cline v. Frink Dairy Co., 274 U.S. 445, 458 (1927); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921); Todd v. United States, 158 U.S. 278, 282 (1895).

68  Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) (citations omitted).

69  Winters v. New York, 333 U.S. 507, 515 (1948).  Justice Frankfurter disagreed with the application of this principle in Winters, but agreed that criminal laws “must put people on notice as to the kind of conduct from which to refrain.”  Id., at 532-33 (Frankfurter, J., dissenting). See also International Harvester Co. v. Kentucky, 234 U.S. 216, 223-24 (1914).

70  Seee.g., Parker v. Levy, 417 U.S. 733 (1974); United States v. Sharp, 27 F. Cas. 1041 (No. 16,264) (C.C. Pa. 1815).

71  Seee.g., Screws v. United States, 325 U.S. 91, 102 (1945).

72  Seee.g., Screws v. United States, supra, 325 U.S., at 138, 149-157 (Robets, Frankfurter & Jackson, JJ., dissenting); Cass, Ignorance of Lawsupra, at 680-83; Herbert Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 122-123 (1962).

73  See United States v. Yates, 733 F.3d 1059 (11 th Cir. 2013), certgranted, Apr. 2014, Docket No. 13-7451.

74  Pub. L. 107-204, 116 Stat. 745 (2002).

75  18 U.S.C. §1519.

76  Seee.g., Cass, Ignorance of Lawsupra.

77  16 U.S.C. §§3371-3378.

78  Seee.g., C. Jarrett Dieterle, The Lacey Act: A Case Study in the Mechanics of Overcriminalization, 102 Geo. L.J. 1279 (2014).

79  Seee.g., Cass, Ignorance of Lawsupra, at 689-95.

80  See Klein & Grobey, supra, at 17-32.

81  See ABA Reportsupra, at 153-54.

82  See Klein & Grobey, supra, at 5-16.

83  Seee.g., Baker, supra, at 27-28.

84  Seee.g., Stuntz & Richman, supra; Terwilliger, supra.

85  Seee.g., Cass, Rule of Law, supra, at 17-18, 28-29; Dorf, supra.

86  Seee.g., Baker, supra, at 28.

87  Reports of billion-dollar-plus settlements with the government in the face of potential criminal charges—sometimes for behavior that looks like ordinary commercial decisions of the sort that might (or might not) give rise to tort liability—are symptomatic of this phenomenon. Seee.g., Danielle Douglas & Michael A. Fletcher, Toyota Reaches $1.2 Billion Settlement to End Probe of Accelerator Problems, Wash. Post, Mar. 19, 2014, available at; Ben Protess & Jessica Silver-Greenberg, In Extracting Deal from JPMorgan, U.S. Aimed for Bottom Line, NY Times, Nov. 19, 2013, available at

88  The reported settlement rate for federal criminal cases is 97 percent, a sharp rise over the past three decades, with the increase attributed to growing numbers of criminal laws and opportunities for increased punishment. Seee.g., Gary Fields & John Emswhiller, Federal Guilty Pleas Soar as Bargains Trump Trials, Wall St. J., Sep. 23, 2012, available at

89  Seee.g., Lambert v. California, 355 U.S. 225 (1957); Winters v. New York, 333 U.S. 507, 515 (1948); Cline v. Frink Dairy Co., 274 U.S. 445, 458 (1927); Connally v. General Constr. Co., 269 U.S. 385, 391 (1926); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921); Todd v. United States, 158 U.S. 278, 282 (1895).


Yates v. United States: Angling for A Narrower Statute

Originally published at National Review by Jonathan Keim | November 6, 2014

The justices made waves Wednesday during Supreme Court arguments (transcript here) in Yates v. United States, a case about a federal obstruction of justice statute, 18 U.S.C. § 1519, that was passed as part of the Sarbanes-Oxley legislation, which was originally intended to broaden federal white collar criminal laws after the Enron debacle. This particular provision of Sarbanes-Oxley makes it a crime when someone “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with intent to impede, obstruct, or influence an investigation, and gives the crime a maximum penalty of 20 years.  TOP ARTICLES3/5READ MOREBloomberg Claims Russia Is AidingSanders in Primary to Aid Trump in General Election

The defendant, a commercial fisherman, was convicted under the statute for tossing three undersized fish back into the ocean after a federal official instructed him to hold onto them so they could be seized, and was sentenced to 30 days in prison.

The parties’ arguments on appeal were even-keeled: the defendant argued that the statute, being focused on white-collar information storage, did not apply to red grouper. The government argued that the court should allow the statute to have its full linguistic scope. Both parties ably articulated and defended their positions. First-year law students still trying to figure out how legal reasoning works should note the Supreme Court justices testing the boundaries of the statutory phrase “tangible objects” by reference to Internet “cloud” storage, typewriters, iPads, laptop and desktop computers, iPhones, an empty filing cabinet, a knife with the defendant’s name written on it, an EPA questionnaire, and digital and analog photography (pp. 5-7, 12, 16, 20-22).

Under the surface, though, this case was about much more. As became clear at oral argument, the justices had deep concerns about the scope of federal criminal law and the government’s exercise of prosecutorial discretion.

The justices initially snagged their hooks on the overcriminalization problem in this case. As you can imagine, the specific purposes of Sarbanes-Oxley – stricter punishments for white collar crimes – have nothing to do with fish. Yet the words of the statute are almost impossibly broad. Justice Breyer’s skepticism was noteworthy (p. 16):

MR. BADALAMENTI: The narrowing is the document itself. This statute’s exceedingly broad. Our –

JUSTICE BREYER: But my problem, of course, is reading the statute and taking your argument in the context that you mean it, which is we must look for a way to narrow this statute, which at first blush seems far broader than any witness tampering statute, any obstruction of justice statute, any not lying to an FBI agent statute that I’ve ever seen, let alone those within Section 15 [sic].

Justice Scalia was particularly critical, describing the statute as “incredibly expansive.” (p. 17) Under questioning, the government lawyer admitted that the statute did not require the defendant to know that a particular matter was within federal jurisdiction (pp. 39-40) to be guilty of a crime, which seemed to surprise Justice Scalia. Justice Scalia also asked the government lawyer to help him find a limit to what might constitute a “tangible object”, triggering a flippant response that tacitly conceded the point (pp. 43-44):

MR. MARTINEZ: I think — I think it’s true that the term “tangible” is different. I think that the way to understand the term “tangible” is the way in which Congress and — and the rules always use the term “tangible” in connection with things or objects, which is as a way to refer to all types of — of objects, all types of evidence.

We’ve cited 35 different provisions of the U.S. Code and of the — the discovery rules in the criminal context and in the civil context. Those are at Footnote 3 of our brief. In all of those instances, they use the phrase “tangible things” or “tangible object” to refer to everything. And so there’s no reason to think that the addition of the word “tangible” somehow shrunk the scope of the statute. And even if it did shrink –

JUSTICE SCALIA: Is there such a thing as an intangible object? I’m trying to imagine one.

MR. MARTINEZ: I — I think the — you could say that the object of the game of Monopoly is to win all the money, but that’s not really what Congress was looking at here.


Laughter seemed to bubble to the surface in every swirling eddy of argument. Justice Kagan triggered an early moment of levity when she admitted to not being able to pronounce the name of the textual canon ejusdem generis (p. 8) and Justice Sotomayor provoked guffaws when the defense lawyer (wisely) declined her request to make the case for applying a different statutory provision to her client (pp. 13-14). Justice Breyer even intercepted a question addressed to the petitioner by Justice Scalia and answered it himself (pp. 17-18).

The Justices seemed especially eager to bait the audience to laughter with criticisms of the prosecution and Congress. The Chief Justice mocked the government lawyer’s over-the-top characterization of the defendant’s criminality (pp. 29-30):

MR. MARTINEZ: . . . And just to emphasize what happened here, Mr. Yates was given an explicit instruction by a law enforcement officer to preserve evidence of his violation of Federal law. He directly disobeyed that. He then launched a — a convoluted coverup scheme to — to cover up the fact that he had destroyed the evidence.  He enlisted other people, including his crew members, in  executing that scheme and in lying to the law  enforcement officers about it. And then –

CHIEF JUSTICE ROBERTS: You make him sound like a mob boss or something. I mean, he was caught —


CHIEF JUSTICE ROBERTS: The fish were — how many inches short of permitted were the fish?

MR. MARTINEZ: The fish were — it varied fish by fish, Your Honor.


Justice Scalia likewise criticized Congress’s passage of several adjacent and overlapping crimes that cover largely the same conduct. After the government lawyer explained that these were the result of several poorly-drafted bills (pp. 38-39), Justice Scalia commented that “that explains how it happens. It doesn’t explain how it makes any sense.”  (Scalia was too polite to use a Dickens character’s less delicate characterization.)

Even Justice Kennedy, who is not usually droll, commented (p. 54) that “Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act.”

The arguments also revealed the justices’ serious concerns about the government’s failure to exercise prosecutorial discretion in this case. Justice Scalia was particularly piqued, making the first of several allusions to Bond v. United States (2014) by members of the Court (pp. 27-28):

JUSTICE SCALIA: Is there nothing else you who — who do you have out there that — that exercises prosecutorial discretion? Is this the same guy that that brought the prosecution in Bond last term?

* * *

JUSTICE SCALIA: No, I’m not talking about Congress. I’m talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?

Justice Ginsburg inquired about the Department of Justice’s charging policy, and after the government attorney explained the policy laid out in the U.S. Attorney’s Manual, Justice Scalia again ripped into the government (p. 29):

JUSTICE SCALIA: Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

It’s not clear whether Justice Scalia was speaking as a member of the Court or as a hypothetical legislator, but either way, these are strong words coming from a textualist.  Later, Justice Breyer piled on (pp. 35-36):

JUSTICE BREYER: I mean, somebody comes to the door and says — I’ve been through this. He passes a piece of paper through the door. It’s the postal — it’s a postman. He says, please send this back. It’s our proper duty to deliver the mail. I say, I hate postmen and I rip it up. 20 years.


MR. MARTINEZ:   Your Honor, that would not be covered.


JUSTICE BREYER: And why wouldn’t it happen? It wouldn’t happen because you’d never prosecute it, though I’ve had my doubts recently.


Even Justice Kennedy deep-sixed the government’s view of prosecutorial discretion, declaring (pp. 52-53) that “we should just not use the concept or refer to the concept at all anymore.”

The Court’s concerns about prosecutorial discretion raise another question: In general, promises to use prosecutorial discretion wisely are not an appropriate basis for interpreting a statute broadly. But would it ever be appropriate for the Court to narrow the statute because the government articulates an unwise prosecution policy?  If so, how far could it narrow the statute?  And on what basis?

Oliver Wendell Holmes once wrote that “hard cases make bad law,” and I think that’s true in this case. The Court’s moral objections to this case make what would otherwise be a fairly straightforward question of statutory interpretation into a much more difficult issue. The text is vastly broader than the Court seems to think is just or appropriate, particularly in light of the 20-year statutory maximum penalty. But as Justice Scalia observed, the terms of the statute are not vague, just broad. Thus, a dilemma: does the Court give a vastly overbroad statute its full linguistic sweep, or does it apply other principles in a way that would narrow it?

The options are unattractive.  On the one hand, the Court could simply apply the law as written and hope that Congress fixes it (which might make for some excellent bipartisan legislation in the next Congress). On the other, the Court could apply some broad principle that narrows the statute in spite of its text, just as it did in Bond (as the Chief Justice suggested on p. 46). But the difficulty with this sort of solution, as it was with Bond, is that the breadth of the principle also reduces certainty about what conduct is legal and illegal, especially for statutes that have not yet been narrowed. Or doing so could amount to judging, not based on existing rules of jurisprudence, but on purely result-oriented principles concocted only for the purposes of one case.

But although the rule of lenity and other canons of interpretation help a little bit, the statute has the textual breadth it does because Congress said so. Since the overbreadth problem was caused by Congress, the best way to deal with the overbroad statute is to amend it legislatively instead of applying fishy interpretive fixes. Otherwise the Court would be asserting a role for itself as statute-fixer-of-last-resort, an impossible position that elevates the Court’s role beyond that of deciding cases in accordance with law. In addition, narrowing the statute would effectively insulate Congress and the Executive from accountability for decisions about what conduct should be prosecuted. Consequently, the best way for the Court to decide this case is probably, as unattractive as it may be, to apply the law as written, affirm the conviction, and exhort Congress to fix the statute. 

JONATHAN KEIM — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and … @jonathankeim


What the Peanut Salmonella Case Teaches Us About Overcriminalization

Originally published at The National Review by Eli Lehrer | 9/22/14

Brothers Stewart and Michael Parnell — the company owner and buyer at the center of the salmonella-tainted peanut scandal that killed nine people in 2008 and 2009 — will both face long prison sentences following their convictions on federal charges last week. But the specific way that the brothers will face justice ought to raise some questions for anyone concerned about laws that have granted too much arbitrary power to courts and prosecutors. Quite simply, the Parnells are being prosecuted and sentenced for technical wrongs when their actual crime was much worse.

Food Safety News, a trade publication that provided the most knowledgeable and in-depth coverage of the trail, puts it simply: “At no point did the government charge the defendants with being responsible for the deaths or injuries that resulted from the outbreak.” The only issues heard in the Georgia courtroom involved lying on paperwork and shipping unsafe products.

Such things should obviously be illegal. That said, civil sanctions, administrative penalties, and fines can do far more to discourage firms from doing them than criminal charges. It’s easier to levy such penalties than it is to get a criminal conviction, and the tools available to civil authorities, such as the ability to close plants and seize goods, do more to protect the public than a criminal trial could. The existence of laws allowing for stiff jail sentences for what are essentially paperwork violations likely give prosecutors the power to lock up almost anyone in the food business. That’s more power than the government should have.

In particularly egregious cases of food-safety breaches — and the Parnells’ behavior was egregious — criminal charges are appropriate. But, in these cases, it’s much better and fairer to try malefactors for the harm they do rather than technical wrongs: In this case, with nine people dead and hundreds more made ill, state prosecutors could have easily charged both brothers with manslaughter and assault. The charges might have been a little harder to prove and the trial would have take place in a state court rather than a federal one. But such a process would do far more to serve the interests of justice. 


How Destroying Fish Is Not Destroying Financial Records

Originally published at Cato Institute by Trevor Burrus | July 10 2014

Case: Yates v. US

Overcriminalization is a significant problem in the United States, particularly federal overcriminalization. There are a variety of reasons for this, but one is that federal prosecutors consistently stretch laws to encompass conduct that the law was never meant to cover. Normal people who committed minor infractions will often find themselves facing long prison sentences that are entirely disproportionate to the wrongness of the act. Such is the case in an upcoming Supreme Court case, Yates v. United States

While commercial fishing in the Gulf of Mexico, John Yates had his catch inspected by the Florida Fish and Wildlife Commission for whether it complied with size restrictions. Finding some undersized fish, officials cited him for a civil violation and he was ordered to bring the undersized fish back to the docks. Instead, he threw them overboard. While he probably knew he would face a fine, what he could not have foreseen was his subsequent criminal prosecution under the Sarbanes‐​Oxley Act three‐​years later.

Sarbanes‐​Oxley was enacted in the wake of the Enron financial scandal and cover‐​up. It includes a document shredding provision, Section 1519, that punishes those who knowingly destroy or conceal “any record, document, or tangible object” in order to impede an investigation. To Mr. Yates’s surprise, he was convicted of violating Section 1519 and sentenced to 30 days in prison and three years of supervised release. On appeal, the Eleventh Circuit upheld his conviction by narrowly focusing on the dictionary definition of “tangible object.”

Now, on appeal to the Supreme Court, Mr. Yates asks the Court to overturn his conviction on the ground that he did not have fair notice that the destruction of fish would fall under Section 1519. We agree. In an amicus brief supporting Mr. Yates, Cato argues that well‐​established canons of statutory construction—that is, the rules that guide judges in interpreting statutes—do not allow Section 1519 to be reasonably interpreted to apply to fish. Those canons teach us that a word in a statute, such as “tangible,” should be given more precise content based on its surrounding words, and that it should only be applied objects similar to the precise words preceding it. In short, the other words in the statute, such as “record” and “document,” modify the term “tangible object” to include things like hard drives and diskettes, not fish.

Moreover, an all‐​encompassing reading of “tangible object” would render the words “record” and “document” unnecessary. Additionally, the broader context of the Sarbanes‐​Oxley Act illuminates the meaning of “tangible object.” The Act focuses on financial fraud in the context of companies, not destroying fish. Thus, the words “tangible object” should be read differently in Sarbanes‐​Oxley than they would be in, say, the Federal Rules of Criminal Procedure. If the term “tangible object” is read as broadly as the Eleventh Circuit’s interpretation, it could potentially criminalize an unfathomable range of activities. As such, it would not provide adequate notice to those who may violate the law. Individuals have a right to fair notice of what conduct is proscribed by the law so they may plan their actions accordingly. Legislatures, not courts, should define criminal activity.

Read Cato’s brief here


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.


Overcriminalization and the Tragic Case of Aaron Swartz

Originally published at National Review by Ammon Simon | 1/15/13

On Friday, 26-year-old internet activist Aaron Swartz—who was facing 13 federal charges, along with a potential $1 million fine and 35 years in prison—committed suicide. Federal prosecutors had charged Swartz with using an unlocked MIT computer closet to download, for free, articles from subscription-based academic service JSTOR. Unfortunately, this tragedy is one more example of the increasing problem of over-criminalization. 

I don’t have the technical expertise to tell you exactly what Swartz did or if it violated federal law. Swartz’s expert witness, Alex Stamos, says that it did not, while Professor Orin Kerr disagrees

However, assuming Swartz did break the law, did he really deserve to face 35 years in federal prison for his actions? ThinkProgress Justice (not usually my main source for legal news) lists lesser-punished federal crimes, including (1) bank robbery, (2) selling child pornography, (3) knowingly spreading AIDS, (4) selling slaves, (5) genocidal eugenics, and (6) helping al-Qaeda develop a nuclear weapon. 

In Jacksonville, gang members that “committed a series of violent felonies and crimes, including an extortion that left one man nearly dead; the choking of a young woman until she passed out; armed bank robberies; armed home invasions; daily cocaine and opiate sales; and theft of thousands of dollars’ worth of merchandise from local stores,” received a lesser federal sentence of 30 years in prison.

As Jonathan Blank argues:

Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government.  Unchecked and vindictive prosecutions ruin lives..

Lest there be any doubt about prosecutor’s overreach, even JSTOR settled their civil claims against him in June 2011, and released the following statement after Swartz’s death:

We have had inquiries about JSTOR’s view of this sad event given the charges against Aaron and the trial scheduled for April. The case is one that we ourselves had regretted being drawn into from the outset, since JSTOR’s mission is to foster widespread access to the world’s body of scholarly knowledge. At the same time, as one of the largest archives of scholarly literature in the world, we must be careful stewards of the information entrusted to us by the owners and creators of that content. To that end, Aaron returned the data he had in his possession and JSTOR settled any civil claims we might have had against him in June 2011.

 Ted Frank has a useful compilation of links on this story, along with other examples of over-criminalization


Gibson Guitar Raid: Much to Fret About

Originally published at National Review by Pat Nolan

Federal prosecutors are proving themselves too highly strung.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Brian Aitken Pardon Decision Pending

Originally published at Cato Institute | December 15, 2010

Case: Brian Aitken

In a recent post I discussed the plight of Brian Aitken, a New Jersey resident currently serving seven years in prison. Thing is, it’s not clear that Aitken broke the law.

Radley Balko produced an excellent write‐​up of Aitken’s case, and Glenn Reynolds put together a video. Aitken’s conviction is the product of (1) New Jersey’s draconian gun laws; (2) a lack of prosecutorial discretion that should have focused resources on real threats to society; and (3) a judge’s refusal to issue jury instructions on the “moving exception” to New Jersey’s gun laws. The same judge dismissed animal cruelty charges against a police officer that had placed his penis in the mouths of five calves. The judge was serving in a temporary capacity and not reappointed by Governor Christie. This is overcriminalization compounded by incompetence.

New Jersey Governor Chris Christie has said that he intends to make a decision on Aitken’s conviction by Christmas. If you’ve got the time, here is a link to information on joining Aitken’s Facebook campaign for a pardon and a phone number to call the Governor Christie’s office and express your support.


Heritage Report: When Art Becomes a Crime: A Case Study in OverCriminalization

Originally published at The Heritage Foundation by Andrew Grossman | 3/24/09

When Steven Kurtz awoke one morning in his Buffalo home to find his wife, Hope, unresponsive, he rushed to dial 911 and summon paramedics. It was May 11, 2004. He had no reason to expect that his wife’s fatal heart attack and his call to the authorities would mark the beginning of a four-year odyssey to the belly of the criminal-justice system.

The paramedics and police detectives who arrived at Kurtz’s home that morning to tend to his wife found more than they expected. Off the upstairs bedroom was a small table on which was arranged a home laboratory containing Petri dishes and various items of lab equipment. The detectives spent hours– nearly the entire day–interrogating Kurtz about the equipment and his relationship with his wife and then called in local health department officials, who ran tests on the cultures in the Petri dishes. They were harmless.

Unsatisfied with Kurtz’s answers, however, and still suspicious of the lab, the police decided to call in federal authorities. The next day, three or four vehicles came screeching up to Kurtz as he walked across a funeral home’s parking lot, intending to make arrangements for his wife’s cremation. It was the FBI. Kurtz was detained on suspicion of bioterrorism and held for 22 hours.

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While Kurtz was being questioned in a downtown Hyatt, his home was being ransacked. Agents from the FBI, the Joint Terrorism Task Force, the Department of Homeland Security, and the Department of Defense, as well as officers from the local police and fire departments and the state marshal’s office, arrived on the scene and cordoned off the entire block with crime-scene tape. As the TV cameras looked on, federal agents wearing hazmat suits and bearing guns entered Kurtz’s home and seized all of his equipment, as well as books, personal papers, and his computer. Authorities went door-to-door, questioning Kurtz’s neighbors about his habits and their impressions of him.

Nine-Day Ordeal

Their search went on nine days, and the authorities even seized his dead wife’s body, despite the fact that the local coroner had already determined that her death was due to natural causes. Then federal officials announced triumphantly that they had thwarted a major bioweapons manufacturing plot.

But Steven Kurtz, a professor of visual studies at the University of Buffalo, was no terrorist, “homegrown” or otherwise. He is an artist and activist who works in unusual media. As a review of one of his recent exhibits explains, “Kurtz has never been shy about challenging the establishment, using a blend of performance art and science with his Critical Art Ensemble to stir debate about such things as genetically modified crops and germ warfare.”

The CAE, which Kurtz co-founded in 1987, is an art ensemble that produces Web projects, books, and gallery shows intended to engage viewers on the impact of technology on modern life. Its exhibits regularly include computers and electronics, as well as cultured bacteria, which are sometimes thrown at audience members. According to one of the collective’s members, “We’re…tactical media. We’re mainly interested in how issues of cultural representation, how things are represented to the public, and what’s the ideology and the subtext to how something is being represented.”

At the time of his wife’s death, Kurtz had been at work on three projects. The small laboratory was intended for an exhibit on genetically modified organisms contained in store-bought foods at the Massachusetts Museum of Contemporary Art. Most of the Petri dishes and harmless bacteria growing in them were meant for an exhibit called “GenTerra,” the subject of which was the genetic engineering of organisms. The rest of the Petri dishes, as well as many books and papers, were part of Kurtz’s early research for “Marching Plague,” a project critical of the development and use of biological weapons agents. Those bacteria, as well, were harmless.

Claims Unravel, but Investigation Continues

After more than a week of searches and analysis, the FBI determined that Kurtz’s home presented no public health risk–and never had. The agency further confirmed that his wife’s death had nothing to do with anything Kurtz might have done in his lab. Kurtz returned home to find the place ransacked, the detritus of a rushed investigation–stacks of pizza boxes and piles of sports drink bottles, discarded hazmat suits, used chemical test-kits– strewn throughout. Many possessions were missing–apparently confiscated–including a draft manuscript for his book on biowarfare.

The authorities’ initial terrorism claims unraveled almost immediately, but the federal investigation dragged on for weeks, with FBI agents questioning museum curators and university administrators with ties to Kurtz’s art collective. Agents issued 10 subpoenas to shocked guests at the opening reception for the CAE’s Mass MoCA exhibit, which the artists had had to cobble together from materials that had not been seized from Kurtz’s home. One CAE member was subpoenaed on the street by an FBI agent and made to appear before a federal grand jury for an inquiry into a possible charge of “possession of biological agents,” a criminal offense created by the Patriot Act. The offense prohibits the possession of “any biological agent…that, under the circumstances, is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose.”

Kurtz and his allies believed he had two sure-fire defenses to that charge that would keep him from being indicted.

First, the bacteria were completely harmless. Indeed, their safety had been an essential component of the planned exhibit. “We were kind of demystifying the whole procedure and trying to alleviate inappropriate fear of transgenic science and redirect concern toward the political implications of the research,” one CAE member told The New York Times. As one leading biochemist explained in a letter to the lead prosecutor, the bacteria found in Kurtz’s home “are so safe that they are cultured on open lab benches and used in public education.” He continues: “You have more dangerous organisms likely growing on soft cheeses in your refrigerator.”

Second, the work done by Kurtz and his allies clearly fit into the “peaceful purpose” exception in the statute–after all, they were artists, not belligerents, and their work was actually critical of bioweapons.

The Indictment

It was a surprise, then, when nearly two months after the death of Kurtz’s wife, a federal indictment came down: Steven Kurtz and Robert Ferrell, a CAE associate who researches genetics at the University of Pittsburgh, were charged not with possessing biological agents, but with mail fraud and wire fraud. According to the indictment, Kurtz had used Ferrell to purchase several strains of bacteria from an academic supplier, American Type Culture Collection (ATCC), in violation of ATCC’s terms of sale: that its customers be associated with an approved lab or business, use the bacteria for research purposes only, and not distribute or transfer the bacteria.

The “crime,” in other words, was breaking the terms of a private contract. Scheming to violate these contractual terms, under the prosecution’s theory, was fraud, and both ATCC and the University of Pittsburgh were victims. And since Kurtz and Ferrell had discussed the matter over e-mail and the bacteria were shipped by mail, they could be prosecuted under the federal wire fraud and mail fraud statutes.

Just because the grand jury had declined to approve the charge that they had feared most– possession of biological agents–did not mean that Kurtz and Ferrell would get off easily. The fraud charges carried penalties of up to 20 years in jail and potentially $1 million in criminal fines apiece.

Kurtz and Ferrell vowed to fight the charges and were better positioned than most to do so. Their friends had established a defense fund to pay legal expenses, which would ultimately top $250,000, and the art world rallied on their behalf. Dozens of newspapers and magazines ran articles and columns on the case, most of them critical of the prosecution. Both of their universities stood by them. Few defendants in their position, Kurtz explains, would have the connections that they did and the resources and support needed to fight such a prosecution.

A Reputation Ruined

Even so, the pressure and uncertainty eventually proved too much for Ferrell. The prosecution put a major blot on what had been a long and outstanding career during which he had contributed over 200 articles on the causes of diseases such as schizophrenia, muscular dystrophy, and diabetes. With criminal charges and the possibility of jail time hanging over his head, Ferrell, 64, was forced to curtail much of his research.

The prosecution also took a toll on his health. Previously diagnosed with non-Hodgkin’s lymphoma, an incurable disease, Ferrell had undergone a bone-marrow transplant shortly after the indictment came down. The stress of the case contributed to a series of strokes, further weakening him.

In October 2007, Ferrell reached a deal with prosecutors and, in exchange for avoiding a prison sentence that would probably kill him, pleaded guilty to a single misdemeanor count of mailing the bacteria to Kurtz. Ferrell was sentenced to a year of unsupervised release and a $500 fine. At Ferrell’s sentencing hearing, the judge almost apologetically explained that this was “the most lenient sentence that I could give” under law.

Kurtz, however, declined to plead guilty to a lesser charge and insisted that the government take the case to court. He argued that the indictment was defective because it failed to allege several elements of fraud: that the alleged victims–ATCC and the University of Pittsburgh–had been deprived of property and that he had intended to commit fraud. According to Kurtz, the prosecution had simply failed to demonstrate, even assuming the truth of the facts in the indictment, that he had done anything amounting to a crime under either of the fraud statutes.

Two Theories of Fraud

Chief Judge Richard Arcara of the Western District of New York heard oral arguments on Kurtz’s motion to dismiss the charges in late 2007 and early 2008, at which the prosecution put forward two theories of the fraud committed.

The first theory was plain fraud. ATCC and the university, prosecutors argued, were each deprived of two types of property–the bacteria and intellectual property rights in the bacteria–through Kurtz and Ferrell’s scheme.

In a crisp page of analysis in its April 2008 opinion, the court rejected these arguments out of hand. ATCC, the court observed, “was in the business of selling biological agents in exchange for money, and in this case it got what it bargained for. Ferrell, using the [University of Pittsburgh] account, paid ATCC for the biological agents. Therefore, ATCC was not deprived of the biological agents–it simply sold them.”

As for the intellectual property, the court observed that “it is not clear what this allegation even means” and that it “appear[s] to be simply another way of saying that the defendant sought to obtain the biological agents from ATCC.” Again, however, there was no evidence that Kurtz did anything to deprive ATCC of its intellectual property rights, such as reproducing the bacteria and selling them.

Finally, the University of Pittsburgh could not be a victim of fraud, since it never possessed the bacteria or had any property interest in them and, in any case, the indictment did not allege any type of fraudulent conduct directed toward the university.

Recognizing the weakness of its charges, the government belatedly put forward a “no-sale” theory of fraud as well. Under this theory, ATCC simply would not have sold the bacteria to Ferrell if he had not misrepresented the use to which they would be put–in other words, he and Kurtz used fraud to induce ATCC to make a sale it would not otherwise have made.

The court, relying on reasoning from a recent appeals court opinion, drew a distinction between “schemes that do no more than cause their victims to enter into transactions they would otherwise avoid,” which are not crimes, and “schemes that depend for their completion on a misrepresentation of an essential element of the bargain,” which are.

The distinction can sometimes be difficult to draw. False claims made by a distributor to a manufacturer of military goggles that its products would not be sold to restricted nations “went to an essential element of the bargain between the parties” because illegal exports would have dire consequences for the manufacturer, and so could be criminally charged; but falsely claiming that one had been referred by a friend of a potential customer is not criminal fraud, because the misrepresentation “was not directed to the quality, adequacy or price of goods to be sold.” In short, the false claims, to be chargeable as wire fraud or mail fraud, must have “relevance to the object of the contract.”

In Kurtz’s case, the inquiry was relatively straightforward. The prosecution, ruled the court, did not make a proper “no-sale” claim because it did not present any evidence that ATCC’s terms of sale were an essential part of the sales agreement or that Kurtz and Ferrell had intended to violate the terms and thereby defraud ATCC. Indeed, the court observed, “the indictment does not allege that either [Kurtz] or Ferrell even knew about the transfer restriction” in the terms of sale.

The indictment, concluded Judge Arcara, did not spell out any scheme that actually amounted to a crime. He dismissed all charges against Kurtz.

A Bittersweet Victory

For Kurtz, the victory was bittersweet. Though he was ultimately exonerated, the government’s misguided prosecution imposed enormous costs on him, Ferrell, and many other artists and scientists. Kurtz, in particular, remains angry that he was denied the opportunity to mourn for Hope, his wife and artistic partner of 20 years, whose death launched the strange series of events that consumed him for four years. “I think all adults know the feelings of intense grief and depression that are brought about by the loss of a loved one,” Kurtz told writer Ken Goffman. “But when you spice it up with the adrenalin and the hyperanxiety of being attacked by the full weight of federal forces, which in turn causes all your survival instincts to really kick in, you have a bad trip from which you are not going to come down for a long time.”

Dr. Patrick Moore, a professor of genetics at the University of Pittsburgh who has received many awards for his cancer research, laments the effect that the prosecution has had on his and his colleagues’ research. Foreign collaborators, he writes, “have described to me their befuddlement over the Ferrell-Kurtz case,” and this apprehension has stymied his labs’ efforts to recruit foreign scientists to conduct genetic research in the United States. The case, he believes, “marks a low-tide for American scientists.”

Moreover, the prosecution has impeded his research because shipments from biological agent suppliers are now reviewed multiple times and delayed out of the fear of criminal liability. In a letter to the prosecution, Moore is especially blunt: “You are interfering with my work on finding the cause of a cancer because of your prosecution.”

Other cancer researchers found the Kurtz prosecution unsettling. One prominent government scientist, who asked not to be identified, explained that “We share cells every day as a part of our research…. We couldn’t replicate experimental results if we didn’t.” Further, “The suppliers are aware of it” but don’t mind, because the purpose of transfer agreements is to prevent labs from competing against suppliers, not to keep them from sharing cells with other scientists engaged in the same work. If transfer agreements were enforced in that way, she said, basic research “would grind to a halt.”


Despite everything, Kurtz is proud that he was able to fight the charges against him and prevent the government from establishing a precedent that exchanging harmless biological agents and running afoul of other contractual terms are criminal offenses:

[W]hat we were most worried about and why I wanted to fight this case to the end was this precedent, as we were talking about earlier. What should have been at best a civil suit, and it wasn’t even that, the Department of Justice wanted to be able to say, “You know, whenever there’s a contract dispute that involves the mail or internet”–and what contract dispute doesn’t?–“we’re going to have the right to come in and decide whether or not it’s a civil case or, if we wanted to be, however arbitrary, a criminal case. And then we are going to prosecute it as a criminal case….” So, you know, if you filled out a warranty card wrong and mailed it in, that could now be a twenty-year jail sentence. That’s what they were after, and happily the judge ruled against them and said this is an abuse of the law and that mail fraud cannot be used this way. So the precedent went our way and narrowed the law instead of expanding it.

The law, however, remains almost unimaginably broad. Despite Kurtz’s successful defense, prosecutors continue to abuse the federal mail and wire fraud statutes to go after contractual violations, local-government patronage politics, minor regulatory violations, and other conduct that may not warrant civil lawsuits, let alone criminal prosecution. In one recently prominent case, a prosecutor brought charges based on a violation of a Web site’s terms of service–terms that many courts refuse to enforce in contract lawsuits.

In short, prosecutors still wield the unbridled discretion to bring criminal charges against almost any individual, whether or not he or she has done anything typically regarded as a crime. Most of these defendants, like Dr. Ferrell, accept plea bargains to avoid the risk of lengthy sentences. A few, like Kurtz, have the resources and stamina to fight the charges, at great personal expense, and actually win–but they are the rare exception that proves the rule.

Andrew M. Grossman is Senior Legal Policy Analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.