The Next Step After the First Step Act: Purge the U.S. Criminal Code

Originally published at Manhattan-Institute by Rafael A. Mangual | January 1, 2019

The passage of the First Step Act — the criminal-justice and prison-­reform bill championed by President Trump — was a rare bipartisan triumph in this age of deep polarization.

But the bill left much unaddressed and was missing another reform that conservatives have long pressed for: namely, stopping the explosion in the number of federal crimes, well beyond what the average citizen should be expected to know or abide by.

Call that the Next Step.

Given the bipartisan cooperation behind First Step, congressional Republicans should now nudge their Democratic colleagues to ­address the serious issue of federal overcriminalization.

That means addressing four main problems.

First, as already mentioned, there is the sheer number of federal criminal prohibitions on the books. Though no one can say for sure just how many federal crimes exist, estimates put the number at more than 300,000, a ridiculous number of crimes for Americans to be versed in.

These include prohibitions on selling “spaghetti sauce with meat” that contains less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle and walking a dog on a leash longer than six feet on federal property.

Second, a majority of federal crimes lack meaningful intent ­requirements, bucking centuries of legal tradition requiring that prosecutors establish mens rea (that the defendant acted with a guilty mind) to secure a conviction.

This lack of intent requirements is especially troubling considering the fact that thousands upon thousands of federal statutes could result in a felony conviction if violated.

Third, many federal crimes are, counterintuitively, codified outside the federal criminal code (Title 18). Instead, they are sprinkled throughout the many thousands of pages of federal statutes and regulations.

Finally, less than 2 percent of federal criminal law — about 5,000 of the more than 300,000 crimes — are statutes passed by both houses of Congress and signed into law by the president. Instead, the overwhelming majority are criminally enforceable regulations created by politically unaccountable bureaucrats.

This last problem is best understood as “criminalization without representation.” It is a direct threat to individual liberty and a hindrance to a well-functioning market economy.

Collectively, these problems have created a body of criminal law that is far too large and disorganized for anyone to read, let alone internalize. Coupled with the erosion of criminal-intent standards, this means that each of us by some estimates commits, on average, three federal felonies a day.

In addition to significantly raising the cost of legal compliance, which in turn raises the cost of ­doing business, overcriminalization tramples on core American principles of representation, fair notice and due process.

So what should the “next step” look like?

First, it should include a default criminal intent standard that would apply to any federal crime that doesn’t explicitly state whether, and to what extent, a showing of intent is a prerequisite for conviction.

This was part of an earlier bipartisan package of reforms scuttled at the last minute by the Obama administration and opposed by left-wing groups, though many of these same outfits loudly backed the First Step Act.

Second, the next reform should restore political accountability to the process of crime creation by restricting to civil enforcement all rules that haven’t passed both houses of Congress through the process most of us have been familiar with since childhood, thanks to “Schoolhouse Rock.”

Enacting such reforms to reduce federal overcriminalization would require Democrats to reciprocate the support they recently received from Republicans for First Step. Given the midterm-election results, that may be a tall order. Yet it should be made a priority not merely as a show of bipartisanship, but because, as the president said of the First Step Act, it’s “the right thing to do.”


Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute. Follow him on Twitter here.


Tammie Hedges and the Overcriminalization of America

Originally published at National Review by James R. Copland and Rafael A. Mangual| October 11, 2018

Across the country, well-meaning Americans face the threat of prosecution for violating state laws that criminalize unobjectionable behavior.

In the wake of Hurricane Florence, North Carolina prosecutors served Tammie Hedges with a twelve-count criminal indictment. Hedges runs a non-profit group, Crazy’s Claws N Paws, and during the storm she offered both shelter and basic first aid to pets whose evacuating owners could not take them along. Local officials, at the behest of the state’s Department of Agriculture, accused Ms. Hedges of practicing veterinary medicine without a license.

Facing a public outcry, prosecutors have since dropped these charges. But other individuals who find themselves in the state’s prosecutorial crosshairs have had to go to court to vindicate their rights. Among these was another North Carolinian, Steve Cooksey, who in 2012 was accused by the state of the unlicensed practice of dietetics after he blogged about his dietary practices. Cooksey eventually won a challenge before the U.S. Court of Appeals on First Amendment grounds, but Steven Pruner, another North Carolinian, was not so lucky: In 2011, he was sentenced to 45 days of police custody for selling hot dogs without a permit from his food cart outside the Duke University Medical Center.

North Carolina is hardly alone in criminally prosecuting individuals who unknowingly run afoul of picayune regulatory laws with little to no public-health or -safety purpose. An Oklahoma bartender was prosecuted for serving vodkas infused with flavors like bacon and pickles; a Minnesota man was jailed for the crime of not finishing the siding on his own house; and a California mom was prosecuted for selling homemade ceviche through a recipe-exchange group on Facebook.

In every state in the union, well-meaning individuals face the threat of prosecution for violating regulations that criminalize morally unobjectionable behavior. A new Manhattan Institute report we co-authored assesses the state of criminal law across multiple states and finds that unnecessary criminal statutes abound. States’ criminal codes are three to ten times longer than the Model Penal Code promulgated by the august collection of scholars and practitioners at the American Law Institute. More than 77 percent of new crimes are codified outside the criminal code. And a large fraction of state crimes are never voted on by elected representatives, because criminal-lawmaking power is regularly delegated to bureaucrats or even private licensing boards.

Call it “criminalization without representation.”

Some of the criminal regulations we have studied are silly, such as an old South Carolina law promising jail time for the unlicensed practice of fortunetelling. (Exactly how one would license a fortuneteller remains unclear.) Others make some sense — including the veterinary-licensing requirements that ensnared Ms. Hedges. (Dispensing potentially dangerous pharmaceuticals to care for Spot and Fido raises legitimate public-health and -safety concerns.) But the proliferation of criminal laws makes it almost impossible for citizens to know what can land them in handcuffs.

What, then, is to be done? There are various steps states can take to streamline their criminal laws, protect those who unknowingly violate rules, and make lawmakers more accountable.

Legislatures should focus on making their criminal laws easier to follow, as well as on trimming unnecessary, duplicative, and unjust statutes from the books. Earlier this summer, the North Carolina legislature gave its imprimatur to a working group tasked with recodifying the state’s crimes into a comprehensive criminal code. In 2014, Minnesota governor Mark Dayton called the legislature into an “unsession” focused on pruning outmoded laws; more than 1,175 crimes were repealed in the effort. Other states would be wise to follow such examples.

Legislatures should also enact rules that protect individuals who unintentionally violate a rule that does not involve dangerous or onerous conduct. All states should join the 15 that have established a default level of criminal intent that prosecutors must prove to secure a conviction, unless the legislature expressly says otherwise. States should also expand the ability of individuals to assert a “mistake of law” defense if they can show they made a genuine good-faith effort to comply with legal rules.

Finally, legislatures should stop the practice of delegating their criminal-lawmaking authority to unelected officials. Regulatory agencies may be better equipped to draft complex regulatory codes, but there is little excuse for allowing them to unilaterally write rules that can land citizens behind bars.

After all, most individuals and businesses unlucky enough to run afoul of such laws won’t be as lucky as Tammie Hedges, who escaped prosecution largely because her case made national news. If we’re serious about addressing the problem that landed an animal lover in handcuffs, it’s time we started reversing the overcriminalization of America.

— James R. Copland and Rafael A. Mangual are the authors of the recent Manhattan Institute study, Overcriminalizing America: An Overview and Model Legislation for the States.


Overcriminalizing America: An Overview and Model Legislation for States

Originally published at Manhattan-Institute by James R. Copland and  Rafael A. Mangual | August 8, 2018


Building on previous MI studies, this paper lays out the contours of America’s state-level overcriminalization problem. Today, state statutory and regulatory codes overflow with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.

The proposed model legislation and executive order in this paper offer a framework for state lawmakers to address the overcriminalization problem. These policies:

  1. Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
  2. Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
  3. Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created.



American law today has a way of making criminals out of ordinary citizens and small business owners:

  • In 2016, authorities in Oklahoma prosecuted bartender Colin Grizzle for serving vodkas infused with flavors like bacon and pickles. The practice, though popular with patrons, violated Title 37, Chapter 3, Section 584 of the Oklahoma Code.[1]
  • In 2012, a Minnesota man, Mitch Faber, was jailed for the crime of not finishing the siding on his own house.[2]
  • In 2011, North Carolina authorities prosecuted Steven Pruner for selling hot dogs from his food cart outside the Duke University Medical Center without a permit. Pruner was sentenced to 45 days of police custody.[3]

Parents today face criminal sanction if they let children run free—as South Carolina mother Debra Harrell discovered in 2014, when she was arrested and lost custody of her nine-year-old child, whom she had allowed to play alone in a park.[4] But parents who drop children off in others’ care can unwittingly place their friends in criminal jeopardy; in 2009, a Michigan woman, Lisa Snyder, was threatened with arrest after it was discovered that she was taking her neighbors’ kids to the school bus stop each morning, which state regulators considered a violation of laws banning unlicensed day care.[5]

In some cases, states have delegated criminal lawmaking authority to unelected regulators and private boards. Such boards have asserted surprisingly sweeping powers. In 2012, the North Carolina Board of Dietetics and Nutrition accused Steve Cooksey of an unlicensed practice of dietetics, a misdemeanor under a catchall provision criminalizing any violation of dietetics or nutrition provisions in the general statutes.[6]

Cooksey’s crime? After battling life-threatening diabetes, he had started an Internet blog, in which he shared his experiences, described how a new diet had helped him overcome his serious condition, and answered questions posed by blog readers.[7] According to the board, the crime extended to ordinary advice exchanged in private e-mails and telephone calls between his friends and readers.[8] Cooksey ultimately prevailed in a First Amendment challenge to the law brought by the litigation nonprofit Institute for Justice;[9] but individuals and business owners without such strong free-speech claims are not afforded a similar ability to get out of jail.

Cooksey’s alleged violation was unknowing—but that offered him little recourse. In most jurisdictions, the fact that someone accused of a crime was engaged in seemingly innocent conduct and had no reason to know that he was breaking the law affords no defense.

In 2007, a Michigan appeals court upheld the conviction of Kenneth Schumacher for the unlawful disposal of scrap tires, which included a sentence of 270 days in jail and a $10,000 fine. Schumacher had not known that the facility where he deposited his tires had seen its permit expire; he believed it to be a legal depository.[10] The court nevertheless determined that Schumacher’s subjective judgment that his delivery was legal did not absolve him of the environmental law’s strict licensing rule.[11] (Michigan has since adopted a law that requires a showing of criminal intent for any crime unless the legislature expressly states otherwise; but it remains a minority rule across the states, including in North Carolina.)

These cases exemplify “overcriminalization,” which describes the rapid growth in the number of criminally enforceable rules and regulations. Overcriminalization particularly refers to crimes for conduct that is not intuitively thought of as criminal.

Overcriminalization in the U.S. has drawn increasing scrutiny by politicians,[12] judges,[13] scholars,[14] and policy analysts.[15] In 2010, coauthor Copland published a book chapter looking at overcriminalization in New York State.[16] Four years later, the Manhattan Institute began to systematically study overcriminalization at the state level, through jurisdiction-specific analyses of quantitative and qualitative trends in state criminal lawmaking. Reports on criminal law in Michigan,[17] Minnesota,[18] North Carolina,[19] Oklahoma,[20] and South Carolina,[21] as well as additional analysis of surrounding states, identified overcriminalization as a serious problem.

Overcriminalization goes beyond the mere presence of too many laws on statute books. Our research has highlighted fundamental deficiencies in how crimes are created and codified. These deficiencies undermine political accountability and erode the structural limits on government action that preserve our freedoms. Overcriminalization is exacerbated by the erosion of traditional intent requirements and other due-process protections in criminal cases.

This paper builds upon the collective findings of our series of state-specific reports and proposes model legislation and executive orders that states can adapt to ameliorate overcriminalization.

Overcriminalizing America

Too Many Crimes

It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

James Madison, Federalist No. 62

In the Overcriminalizing America series of reports, Manhattan Institute scholars observed bloated criminal codes—sometimes several times larger than the Model Penal Code (Figure 1). (The Model Penal Code is a document drafted by the American Law Institute—an independent group of lawyers, judges, and academics—to “assist legislatures in making a major effort to appraise the content of the penal law by a contemporary reasoned judgment.”)[22]

In comparison with the Model Penal Code’s 114 sections, the criminal codes in Michigan and North Carolina, measured in 2014, had 918 and 765 sections, respectively; those in Minnesota, Oklahoma, and South Carolina, measured in 2016, contained 327, 1,232, and 557 sections, respectively. These state criminal codes varied between 129,000 and 293,000 words. Michigan’s criminal code, for example, uses 266,300 words—taking up 500 pages of 10-point, double-spaced Times New Roman text.

As voluminous as these state criminal codes are, they only begin to scratch the surface in cataloging how many crimes are actually on a state’s books. Many state crimes are codified not in penal codes but in other parts of the broader statutory code, in the vast array of agency-created regulation, and even in private licensing-board rules that have de facto criminal effect through “catchall” statutory delegations of criminal lawmaking power. In each of the five states studied in the Overcriminalizing America series, a majority of new crimes created by statute in the preceding six years were codified outside the criminal code—including 83% of new crimes enacted in Minnesota, 86% of new crimes enacted in South Carolina, and 91% of new crimes enacted in Oklahoma.

During the six-year periods studied, the five states added to their criminal statutes at alarming rates (Figure 2), creating 26–60 new crimes annually—an average of 42 per year. Many of the new crimes created in these jurisdictions were felonies (Figure 3).

The creation of new crimes has hardly slowed down in the years since we released our reports. During the 2015–16 legislative sessions in Michigan,[23] North Carolina,[24] and South Carolina[25], the state legislatures added an average of 37 new crimes to their books.

Outmoded, Silly, and Poorly Written Laws

“We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws.”

Antonin Scalia, Sykes v. United States, 564 U.S. 1 (2011)

What do some of the crimes populating state statute books look like? Many are duplicative. For example, in 2012, North Carolina enacted a statute criminalizing the theft or vandalizing of portable toilets—acts presumably covered by the state’s general prohibitions on theft and vandalism.[26] The separate codification of acts covered by existing statutes makes the criminal law harder for the average citizen to follow.

Other crimes created during the periods studied border on the ridiculous. Consider a 2011 Oklahoma statute criminalizing the “[f]ailure to leave any gates, doors, fences, road blocks and obstacles or signs in the condition in which they were found, while engaged in the recreational use of the land of another.”[27] Some statutes are so poorly drafted that they remove all objectivity from the process of determining whether a crime was committed. This was the case for a 2012 Minnesota statute prohibiting drug and alcohol abuse counselors from imposing on their clients “any stereotypes of behavior, values, or roles related to human diversity.”[28] What constitutes such a stereotype is left undefined in the statute.

When considering the problems created by ill-considered new additions to the statute books, often overlooked are the problems that stem from old crimes that, while rarely enforced, remain on the books, contributing to the obesity of a state’s body of criminal law. In South Carolina, for example, an old law prohibits, on pain of imprisonment, unlicensed fortune-telling. How one goes about the licensing of fortune-tellers is unclear. A more important question is why such an archaic statute should remain on the books. We have found no example of present-day enforcement of this law.

Other examples include:

  • Prohibiting the temporary taking of horses or mules (North Carolina)[29]
  • Breaking the Sabbath (Oklahoma)[30]
  • Prohibiting minors under the age of 18 from playing pinball (South Carolina)[31]

The constant creation of new crimes, coupled with the failure to prune the statute books of old crimes, raises the transaction costs of legal compliance and exacerbates one’s risk of becoming entangled in the ever-growing web of state criminal law.

Counterintuitive Codification

“We concluded that the hunt to say, ‘Here is an exact number of federal crimes,’ is likely to prove futile and inaccurate
James Strazzella, author of the american bar association report “The Federalization of Criminal Law”

Imagine being the proprietor of a small business and wanting to figure out whether something is a criminal offense. Where do you look? Most would answer: “The criminal code.” Yet that would be a risky proposition: newly created crimes are often codified outside state criminal codes, in other chapters of the broader statutory code. Indeed, in all five states that we examined, a majority of the crimes created during the six-year periods studied were codified outside their respective criminal codes: 55% for North Carolina, 73% for Michigan, 83% for Minnesota, 86% for South Carolina, and 91% for Oklahoma (Figure 4).

When crimes are codified outside a state’s criminal code, people who want to stay out of prison must sift through every chapter of the state’s broader statutory code. Parsing through volumes of code with word counts exceeding Tolstoy’s War and Peace is difficult for a trained legal professional, let alone a layman. After such parsing, one would still need to read the broad array of catchall provisions attaching criminal liability to the rules and regulations promulgated by agency officials, government boards, and private licensing bodies.

Erosion of Mens Rea

“Even a dog knows the difference between being kicked, and being stumbled over.”

Oliver Wendell Holmes, Jr., The Common Law (1888)

The long-standing tradition in Anglo-American legal systems has been that every crime has two elements: (1) it is a bad act (Latin: actus reus); and (2) it is undertaken with a guilty mind (mens rea).[32] The criminal law has also recognized that there are varying levels of culpability. Generally speaking, offenders can act purposefully, knowingly, recklessly, and negligently. These are terms of art whose definitions are not necessary to set out here; but readers should have a sense of the historical backdrop with which they should view current trends in criminal lawmaking.

State lawmakers have often failed to specify any intent requirements in the crimes that have been added to statutory codes in recent years. In Michigan, a study done by the Mackinac Center for Public Policy found that of the 3,102 crimes on state books in 2014, 27% of felonies (321 of 1,209) and 59% of misdemeanors (1,120 of 1,893) contained no mens rea provision.[33]

Many state courts have interpreted statutory silence on criminal intent as the legislature’s intent to create a strict-liability offense (one for which proof of mental culpability is not required). But this is unlikely. Statutory silence on intent in most cases does not reflect a considered decision on the part of legislators to create a strict-liability crime; rather, it is a likely by-product of ad hoc decision making by different statutory drafters. Regardless, inverting the Model Penal Code’s default rule that mens rea is required absent an express statutory command to the contrary leaves citizens at even greater risk: prosecutors would have only to prove that the defendant committed the prohibited act or omission.

Criminalization Without Representation

“Governments are instituted among Men, deriving their just powers from the consent of the governed.”

—Declaration of Independence (1776)

Due to the sweep of the modern regulatory state, legislators regularly delegate details to the executive branch or, in some cases, to private bodies. Statutory catchall provisions make it a crime to violate any of the vast swaths of rules, regulations, and permitting requirements developed outside legislative input or review. We have dubbed this phenomenon “criminalization without representation.”[34]

In North Carolina, for example, statutory catchall provisions make it a crime to violate any rule adopted by various boards, agency commissioners, and secretaries in the areas of public health, agriculture, and environment,[35] as well as private licensing boards in medicine, dentistry, and nutrition.[36] Further, most local ordinance violations in North Carolina are state criminal misdemeanors.[37] None of these catchall provisions contains any criminal-intent standard, despite the fact that much of the prohibited conduct is unlikely to be intuitively criminal.

North Carolina is not unique. Similar statutory catchall provisions delegating state criminal lawmaking power to unelected or local boards, or to single executive branch officials, exist in the other states studied.[38] Such catchall provisions attach criminal penalties to each rule promulgated by a non-legislative individual or board before any rule is actually created. When criminal rules are then promulgated, after the statute in question becomes law, the elected legislature is not required to review or approve the new crimes.

For an example of how criminalization without representation works, consider a 2010 Oklahoma law, the “Pet Breeders Act,” which, in addition to creating criminal penalties for violating the act, criminalized the violation of “any rule [later] adopted under the [Act].”[39] How voluminous were the subsequently promulgated rules? They exceeded 20 pages with more than 43 sections, highlighting just how much the use of regulatory catchalls can inflate a state’s body of criminal laws.[40]

Fixing the Overcriminalization of America

This report paints an unflattering picture of state criminal law. But there is some light shining through the clouds. Some state legislatures have adopted measures to stem the tide of overcriminalization. The five reforms proposed below—and the accompanying model legislation and executive orders—would build upon these recent legislative successes.

Restore Criminal Intent

One way to protect well-meaning citizens against prosecution for crimes that they unknowingly commit is to ensure that prosecutors meet the same burden of proof for both of the traditional elements of a crime. That is, the government should have to prove criminal intent in prosecuting alleged regulatory offenses—which are not intuitively criminal in nature—just as it is required to do in cases involving more serious offenses.

Fifteen states have adopted default criminal-intent statutes that establish a baseline level of intent that prosecutors must establish to secure a conviction.[41] These default provisions are typically triggered when the criminal statute or regulation in question is silent as to criminal intent.

Unfortunately, even states that have adopted these mens rea rules have sometimes omitted crimes that ordinary citizens are likely to find the least intuitively criminal. For example, Kansas’s default criminal-intent statute applies only to offenses in the state’s criminal code, despite the fact that the criminal code is likely to contain only a minority of the state’s statutory crimes. Kansas and other states should therefore expand their default criminal-intent statutes to apply to offenses listed throughout their entire statutory code.

While including an intent requirement in all criminal statutes may be good policy, legislators may wish to retain the power to create strict-liability offenses in certain cases. Default mens rea laws, such as our proposed model legislation, would not prohibit lawmakers from doing so. Instead, a default criminal-intent statute simply prohibits courts from interpreting statutory silence on criminal intent as the legislature’s desire to create a strict-liability offense. Once such a default is adopted, lawmakers who wish to create a strict-liability offense would have to do so explicitly in the statutory language.


Sec. 1

1. Except as otherwise provided in this section, a person is not guilty of a criminal offense for which incarceration is statutorily a potential punishment, committed on or after the date of the passage of this Act by both legislative chambers, unless both of the following apply:
A. The person’s criminal liability is based on conduct that includes either a voluntary act or an omission to perform an act or duty that the person is capable of performing.
B. The person has the requisite degree of culpability for each element of the offense as to which a culpable mental state is specified by the language defining the offense.
2. If the statutory language setting out the elements of a criminal offense explicitly imposes strict criminal liability for the conduct described in the statute, then mental culpability is not required for a person to be guilty of the offense.
3. If a subsection of a statute plainly imposes strict criminal liability for an offense defined in that subsection but does not plainly impose strict criminal liability for an offense defined in another subsection, the offense defined in the subsection without a plain imposition of strict criminal liability should not be inferred to be a strict-liability crime.
4. Statutory silence as to mental culpability (mens rea) with respect to an offense or element of an offense shall not be construed as the legislature’s intent to impose strict criminal liability for any offenses set out therein.
5. If statutory language defining an element of a criminal offense that is related to knowledge or intent or as to which mens rea could reasonably be applied neither specifies mental culpability nor plainly imposes strict liability, the element of the offense is established only if a person acts with intent, or knowledge.
A. “Intent” means a desire or will to act with respect to a material element of an offense if both of the following circumstances exist:
i. The element involves the nature of a person’s conduct or a result of that conduct, and it is the person’s conscious object to engage in conduct of that nature or to cause that result.
ii. The element involves the attendant circumstances, and the person is aware of the existence of those circumstances or believes or hopes that they exist.
B. “Knowledge” means awareness or understanding with respect to a material element of an offense if both of the following circumstances exist:
i. The element involves the nature or the attendant circumstances of the person’s conduct, and the person is aware that his or her conduct is of that nature or that those circumstances exist.
ii. The element involves a result of the person’s conduct, and the person is aware that it is practically certain that his or her conduct will cause that result.

Sec. 2

1. Nothing in this Act shall be construed to alter the state of the law with respect to the legal effect or lack thereof on criminal liability of the voluntary consumption of a substance or compound one knows or reasonably should know may lead to intoxication or impairment.

Expand the Mistake-of-Law Defense

The “mistake-of-law” defense is a legal mechanism through which a defendant who committed a prohibited act can argue that he nevertheless acted in good faith. If successfully invoked, a mistake-of-law defense can rebut the presumption that a defendant knew and understood the law.

Mistake of law is an affirmative defense, i.e., a criminal defendant must advance it to negate legal liability. The defense requires a defendant to establish that he:

(1) erroneously conclude[d] in good faith that his particular conduct [was] not subject to the operation of the criminal law; (2) ma[de] a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded or [sic] under our legal system, to ascertain and abide by the law; [and] (3) act[ed] in good faith reliance upon the results of such effort.[42]

The defendant must also show that “the conduct constituting the offense is neither immoral nor anti-social.”[43]

Traditionally, a mistake-of-law defense has been viable only in limited circumstances: when the law in question had not yet been published; when the defendant relied on an official interpretation of the law by a prosecutor or other applicable official; or when the defendant relied on a subsequently overruled judicial opinion. The proposed model legislation would expand the applicability of the defense. If a defendant “erroneously concludes in good faith” that his conduct is not illegal, the model legislation would allow him to present a mistake-of-law defense to a jury—even if the law in question was already published or he was not relying on a judicial opinion or an official interpretation from a government official.

This sort of expansion would offer well-meaning citizens an important layer of protection against criminal liability for acts committed despite having made a good-faith effort to comply with the law—so long as they could convince a jury of their good faith. The model mistake-of-law defense would not apply to cases involving violence, property destruction, or the possession or distribution of narcotics, thereby minimizing the possibility that the policy would harm public safety.



“Mistake of Law” is an affirmative defense[44] that, if proven by a preponderance of the evidence, negates the criminal-intent element of a specific-intent crime.


The mistake-of-law defense is a cognizable defense when all of the following elements are established:
1. charges are brought in criminal court;
2. the statutory or regulatory offense(s) in question are not strict-liability offenses, and the state is required to establish criminal intent beyond that to merely perform the act or omission constituting the offense;
3. the defendant erroneously concludes in good faith that his particular conduct is not subject to the operation of criminal law;
4. the defendant makes a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded under our legal system, to ascertain and abide by the law; and
A. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, appropriate means are not limited to reliance on official interpretations or judicial decisions, consultation with a licensed attorney, and, where the offense alleged was committed in a business setting, seeking the advice of internal compliance professionals;
B. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, enactment and publication of a law or regulation shall not be deemed to negate a mistake of law defense as a matter of law;
5. the defendant acts in good-faith reliance upon the results of such effort.

Recodify the Criminal Law

In North Carolina, lawmakers introduced a bill to establish a “recodification task force.” When the proposed legislation stalled, stakeholders from public-policy organizations and the North Carolina government formed an informal working group that took on the tasks outlined in the proposed legislation. The group has since been formally recognized by the state’s legislature, which passed a bill to deliver to the group requested data and other information.[45]

A recodification task force would reorganize a state’s criminal law into a single, comprehensive code of all criminal offenses. Providing a single source in which all criminal offenses are set out would lower the risk that ordinary citizens acting in good faith unknowingly commit a criminal offense, as well as (likely) improve compliance with the criminal law.

The task force would be free to make recommendations to exclude or include various provisions in the comprehensive code being proposed—consistent with the goal of lowering the transaction costs associated with legal compliance. The comprehensive code proposed by the task force could be amended by, and adopted in whole or in part by, the legislature.



There is established the Criminal Code Recodification Commission (hereinafter “[the] Commission”) within the [state name] Judicial Department’s Office of Court Administration {or equivalent}.

The Commission shall be composed of twenty-one members to be appointed as follows {note: composition may vary based on state constitutional structure, statutory schemes, or political realities}:
1. Four members of the Senate appointed by the President Pro Tempore of the Senate. At least one Senate member must be a member of the minority party at the time of the Commission’s creation.
A. Senate members may designate a member of their staff to represent them at meetings of the Commission, but the ability to vote on any matters before the Commission shall be reserved to appointed members.
2. Four members of the House of Representatives appointed by the Speaker of the House of Representatives. At least one House member must be a member of the minority party at the time of the Commission’s creation.
A. House members may designate a member of their staff to represent them at meetings of the Commission, but the ability to vote on any matters before the Commission shall be reserved to appointed members.
3. Two members appointed by the Governor.
4. The Lieutenant Governor, or the Lieutenant Governor’s designee, and one additional member appointed by the Lieutenant Governor.
5. Two sitting sheriffs or police department chiefs, of which one shall be appointed by the President Pro Tempore of the Senate, and the other appointed by the Speaker of the House.
6. Seven members appointed by the Chief Justice of the [state name] Supreme Court as follows:
A. A sitting superior court judge
B. A sitting intermediate appellate court judge
C. Two state penitentiary wardens
D. A sitting district attorney
E. A sitting public defender
F. A member of the private criminal defense bar
7. The Chair of the Commission will be selected by the Governor from among the appointed members.

The Commission shall produce the following:

1. Within eighteen months from the effective date of this Act, a fully drafted, new, streamlined, comprehensive, orderly, and principled criminal code.
2. Official commentary appended to the new code explaining how it will operate. Said commentary shall identify, explain, and provide justification for changes in current law.
3. An offense grading table appended to the new code grouping all offenses covered by the new code by offense grade. Offenses shall be graded within existing sentencing classes.


In producing deliverables outlined in Sec.’s 3(1)–(3), the Commission shall:

1. Incorporate into the new code all major criminal offenses contained in existing law that the Commission has not chosen to exclude.
2. Include necessary provisions not contained in the current code, such as default mental state requirements as an essential element of criminal liability, a listing of affirmative defenses and their elements, and definitions of offenses and key terminology with corresponding citations to governing precedent when applicable or deemed helpful by the Commission.
3. Exclude from the new code unnecessary, duplicative, inconsistent, or unlawful provisions of current law. Note in commentary whether criminally enforceable provisions of current law that have been excluded from the code should remain available for civil enforcement through the levying of fines, or repealed altogether.
4. Use language and syntactical structure to make the law easier to understand and apply.
5. Ensure that criminal offenses are cohesive, rational, and consistent with one another.
6. Make recommendations regarding whether, and if so, what, limitations should be placed on the ability of administrative boards, agencies, local governments, appointed commissioners, or of other persons or entities to enact rules that will, pursuant to the enabling statute, be eligible for criminal enforcement.
7. Address any other matter deemed necessary by the Commission to carry out its legislative mandate.

Repeal Outmoded, Unnecessary, and Unconstitutional Criminal Laws

Some states have undertaken legislative efforts to clean up their statute books by repealing unnecessary, outmoded, and duplicative criminal offenses. In Kansas, for example, the state established an “Office of the Repealer” in 2011. The primary aim of the office was to review the body of criminal law and continuously flag provisions ripe for repeal, which the legislature could then choose to act upon.[46] In Michigan, Governor Rick Snyder signed, in 2015, a bill repealing a number of outmoded crimes[47]—the legislature’s response to the governor’s call for such reforms earlier that year.[48]

While these efforts are laudable, they do not go far enough, considering the rate at which lawmakers are adding new criminal offenses to the books. One state studied by the Manhattan Institute, however, does offer a fine example of how to undertake a large-scale repeal effort. In 2014, Minnesota’s legislators repealed more than 1,175 crimes in what was dubbed the legislative “unsession.”[49] The unsession was the outgrowth of a push by Governor Mark Dayton to prune unnecessary and outmoded laws piling up on state books.[50]

Dayton persuaded lawmakers to take up a long list of crowd-sourced reform proposals during its short even-year legislative session.[51] States wishing to address overcriminalization should consider using Minnesota’s approach. In addition, states should consider appointing a task force to offer recommendations, which could focus and refine crowd-sourced proposals, as well as facilitate bipartisanship.

The proposed model legislation would not create or mandate a legislative “unsession”—traditional notions of the separation of powers argue against having the executive branch of a state government set the agenda for the legislative branch. Instead, we suggest two mechanisms, legislative resolution and executive order, through which states could create an overcriminalization task force. Such a task force would be charged with reviewing the criminal law with an eye toward identifying provisions ripe for repeal. The legislature could then consider the suggestions of the task force, ideally during a special legislative “unsession.”


Whereas, overcriminalization, defined as the growth of criminal statutes within a state’s code of laws, exists as a phenomenon within the state of ______________; and
Whereas, it is in the public interest for the State to establish a ________________ Overcriminalization Task Force to study the presence of the criminal law and how the entirety of the criminal law and state policies affect this population.
Now, therefore,
Be it enacted by the General Assembly of the State of __________________:


SEC. 1

1. There is hereby established the [State Name] Overcriminalization Task Force (hereinafter “task force”) to study and review the scope and application of the criminal law and to examine how the criminal law affects the population of this state.
2. The task force shall consist of thirteen members, composed as follows:
A. the Director of the [State Name] Department of Corrections, or his designee, shall serve ex officio and shall be the chairman of the task force;
B. twelve members who shall be appointed as follows:
i. Six members shall be appointed by the President Pro Tempore of the Senate. Two shall be members of the Senate, at least one of whom shall be a member of the majority political party represented in the General Assembly and at least one of whom shall be a member of the largest minority political party represented in the General Assembly. One shall be a member of the public at large; and
ii. Six members shall be appointed by the Speaker of the General Assembly. Two shall be members of the House of Representatives, at least one of whom shall be a member of the majority political party represented in the General Assembly and at least one of whom shall be a member of the largest minority political party represented in the General Assembly. One shall be a member of the public at large; and
3. the task force shall organize as soon as practicable following the appointment of its members and shall select a vice chairperson from among its members.
4. The members of the task force shall be appointed no later than thirty days after the effective date of this act.
5. Vacancies in the membership of the task force shall be filled in the same manner provided by the original appointments.
6. The members shall serve without compensation and may not receive mileage or per diem. The task force may meet and hold hearings at the places it designates during the sessions or recesses of the legislature; and, wherever practicable, the General Assembly shall make meeting space available to the task force upon request.
7. The findings and recommendations of the task force shall be reported to the Governor and the General Assembly no later than twelve months after the initial meeting of the task force. The report shall principally identify the laws the task force recommends to the General Assembly for repeal.

8. The task force shall dissolve immediately after submitting its report to the Governor and the General Assembly.


State of _______________
Executive Department
Office of the Governor
Executive Order No. 20XX-XX
Whereas, overcriminalization, defined as the growth of criminal statutes within a state’s code of laws, exists as a phenomena within the state of ____________________; and
Whereas, it is in the public interest for the State to establish a ____________________ Overcriminalization Task Force to study the presence of the criminal law and how the entirety of the criminal law and state policies affect this population.
Now, therefore, pursuant to the authority vested in me by the Constitution and Statutes of the State of __________________, I hereby establish the Governor’s Overcriminalization Task Force (“Task Force”) to be composed of ______________ members to include _____________________, appointees from the majority and minority leaders of the Senate and House of Representatives, and representatives from different business sectors and the conservation community, of which I shall designate the chairperson. I hereby direct the Task Force as follows:


1. Task Force Mission: To study and review the body of criminally enforceable rules and regulations and submit a report to the General Assembly identifying those criminal laws and regulations it recommends for repeal.

2. Duties and responsibilities:

A. The Task Force shall evaluate the reports submitted by agencies, pursuant to Section II, that identify current and proposed statutes, rules, regulations, and policies that add new crimes or criminally-enforceable provisions to ________ laws, rules, and regulations.
B. The Task Force shall cooperate and coordinate with the appropriate state agencies, as practicable, to identify current and proposed crimes or criminally-enforceable provisions in state laws, rules, and regulations.

C. The Task Force shall conduct public hearings and solicit input from businesses, employers, conservation groups, professional associations, state agencies, and other interested persons and groups to develop its final report. As practicable, the Task Force shall conduct public hearings in local communities around the State.

D. Staff will be designated to assist the Task Force in developing its report.
E. The Task Force shall submit its final report on or before ________ XX, 20XX, to the Governor and the members of the General Assembly.
FURTHER, I hereby direct all Cabinet agencies and encourage all other executive agencies as follows:


1. Each agency shall identify its current and proposed statues, rules, regulations, and policies that expand the existing quantity of criminal laws in ________ using the following guidelines:

A. Each agency shall comprehensively review all current and proposed statutes, rules, regulations, and policies in order to assess their effects on the criminal law of ________ to determine whether they are exceedingly vague, duplicitous, antiquated, enforced, proportional to their punishments, and contain reasonable culpability requirements.

B. In evaluating statutes, rules, regulations, and policies, each agency should consider factors to include, but not limited to, their necessity, complexity, efficiency, effectiveness, redundancy, public complaints or comments, short- and long-term effects, impact on all affected persons, both intended and unintended, and unintended negative consequences.

2. Each agency shall submit a written report to the Task Force on or before _____ XX, 20XX, providing detailed recommendations to repeal or amend any provisions that unduly burden businesses and citizens of this State.

3. Each agency is authorized to call upon any department, office, division, or agency of this State to supply it with data and other information, personnel, or assistance it deems necessary to discharge its duties under this Order. Each department, officer, division, or agency of the State is hereby required, to the extent not inconsistent with law, to cooperate with another agency and to furnish it with such information, personnel, and assistance as is necessary to accomplish the purpose of this Order.

4. Each agency shall take care to solicit both written and oral comments from the public, including businesses, employees, professional associations, conservation organizations, and other affected persons or entities as the agency deems appropriate and to consider the views expressed by those parties in any report.

This Order is effective immediately.


Eliminate Criminalization without Representation

In every state studied in the Manhattan Institute’s Overcriminalizing America series, lawmakers have delegated effective criminal lawmaking authority to, among others, executive-branch officials, commissions, and private licensing boards. Such delegation makes legal compliance even more complicated for ordinary citizens.

Moreover, each state that we have examined has a large number of crimes that were never voted on, or even reviewed, by anyone who must answer to voters. Criminalization without representation concentrates power in the hands of unelected officials, undermining political accountability. It also threatens to accelerate the rate of new crime creation.

The proposed model legislation aims to constrain regulators’ power to create crimes without express approval by the legislative branch. The model policy would restrict regulations to the realm of civil enforcement unless and until those regulations survive votes in both chambers of a state’s legislature and are approved by the state’s governor—i.e., unless and until those regulations survive the strictures of bicameralism and presentment.



1. Regulatory “catchall” provision—A provision in legislation that prescribes penalties (specifically criminal penalties, for the purposes of this legislation) for the violation of a rule, or rules, a regulatory body is authorized to promulgate, prior to the promulgation of such rules.
2. Regulatory body—Any governmental agency, quasi-private body, commissioner, or other official, vested with the authority to promulgate regulations of any sort enforceable by the state of _______________.

3. Rule or regulation—Any prohibition or requirement articulated by a regulatory body and enforceable either civilly or criminally by the state of ______________.
4. Criminal enforcement—Any enforcement action brought by the state for which the target of the enforcement action, if found guilty, can be imprisoned, labeled as a felon or misdemeanant under state law, fined more than $10,000, or prohibited from exercising state or federal constitutional rights, including the rights to vote, keep and bear arms, and deny a law enforcement officer’s request to conduct a search pursuant to the Fourth Amendment to the Constitution of the United States.

5. Rules eligible for criminal enforcement—Any rule promulgated pursuant to a grant of legislative authority that contains a “regulatory catchall” provision by which the rule is covered.


1. As of the effective date of this legislation, no rule or regulation covered by a “regulatory catchall” provision, except those that satisfy the requirements set out in

(2, below) may be criminally enforced.
2. A rule or regulation may be criminally enforced if and only if it has been approved—in the form of a joint resolution subject to an up and down vote—by a simple majority of both houses of the _____________ state legislature, and that resolution has been signed by the Governor.
3. Promulgated rules eligible for criminal enforcement

that have not satisfied the requirements set out in

(2, above) will be restricted to civil enforcement unless and until said requirements are satisfied.

4. If no civil enforcement penalties are set out in the legislation authorizing a promulgated rule eligible for criminal enforcement, the penalties for the violation of said rule are as follows—

A. Upon a finding of guilt by a preponderance of the evidence, a fine not exceeding $150 per violation may be levied.
B. Failure to pay any fines levied pursuant to (A, above) can result in additional fines, a finding of contempt of court, or the suspension of a state license related to the offense charged held by the accused.


Building on the Manhattan Institute’s previous findings, this paper lays out the contours of the state-level overcriminalization problem. State statutory and regulatory codes are overflowing with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.

The proposed model legislation and executive order offer a framework for state lawmakers to address the overcriminalization problem. These policies:

  1. Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
  2. Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
  3. Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created

Across the states we have studied, the criminal law tends not to reflect due consideration of whether particular disfavored conduct should be criminalized, rather than dealt with through civil or administrative means; whether it is bad enough to dispense with the long-standing principle that a criminal act requires acting with a guilty mind; and whether the punishment for a given crime fits with parallel offenses, criminal and civil. Such questions can be difficult to answer, especially for the many part-time legislators across the states, constrained by time and resources, and often lacking legal training.

The reforms suggested in this paper implicitly recognize such difficulty—offering protections to criminal defendants acting in good faith, delegating recodification and repeal to focused task forces—while also restoring to the legislature the proper ultimate authority over a government’s awesome power to take away a citizen’s liberty.

Each state is different. Some states have more work to do than others. But we are confident that each state needs reform. It is up to elected state leaders to meet that need with action.


  1. Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds, 2017 Annual Report, July 13, 2017.
  2. “Implementing MACRA,” Health Affairs Policy Brief, Mar. 27, 2017.
  3. Office of Inspector General, U.S. Department of Health & Human Services, “Medicare Hospital Prospective Payment System: How DRG Rates Are Calculated and Updated,” OEI-09-00-00200, Aug. 2001.
  4. Ibid.
  5. Centers for Medicare & Medicaid Services (CMS), “National Health Expenditures.”
  6. Charles Roehrig, “A Brief History of Health Spending Since 1965,” Health Affairs blog, Sept. 19, 2011.
  7. American Medical Association, “RBRVS Overview.”
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  10. Medicare Payment Advisory Commission (MedPAC), Report to Congress, “Physician and Other Health Professional Services,” Mar. 2017.
  11. “Implementing MACRA.”
  12. Medicare Access and CHIP Reauthorization Act of 2015, Public Law 114-10.
  13. Institute of Medicine, “Crossing the Quality Chasm: A New Health System for the 21st Century,” Mar. 2001.
  14. Chris Pope, “Medicare’s Single-Payer Experience,” National Affairs, no. 26 (Winter 2016): 2–20.
  15. Kathryn Toone, Natalie Burton, and David Muhlestein, “MACRA in 2017: Overview, Impact & Strategic Considerations of the Quality Payment Program,” Leavitt Partners, Mar. 2017.
  16. Ben Sasse, “House Should Reject Medicare Change,” Politico, Mar. 26, 2015.
  17. CMS, “Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician Focused Payment Models,” Final Rule with comment period, Federal Register 81, no. 214 (Nov. 4, 2016): 77008–831.
  18. CMS, “Medicare Program; CY 2018 Updates to the Quality Payment Program,” Proposed Rule, Federal Register 82, no. 125 (June 30, 2017): 30010–500.
  19. Tim Gronniger et al., “How Should the Trump Administration Handle Medicare’s New Bundled Payment Programs?” Health Affairs blog, Apr. 10, 2017.
  20. Toone, Burton, and Muhlestein, “MACRA in 2017.”
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  30. See the transcript of the MedPAC public meeting, Oct. 5, 2017, p. 7.
  31. Niam Yaraghi, “MACRA Proposed Rule Creates More Problems than It Solves,” Health Affairs blog, Oct. 16, 2016.
  32. “MIPS Reporting Solutions,” Philips wellcentive; “MIPS Registry,” pMD.
  33. U.S. Government Accountability Office, “HHS Should Set Priorities and Comprehensively Plan Its Efforts to Better Align Health Quality Measures,” Report to Congressional Committees, GAO-17-5, Oct. 2016.
  34. Robert A. Berenson, “If You Can’t Measure Performance, Can You Improve It?” Journal of the American Medical Association 315, no. 7 (Feb. 16, 2016): 645–46.
  35. Yaraghi, “MACRA Proposed Rule.”
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  37. Roberts, Zaslavsky, and McWilliams, “The Value-Based Payment Modifier.”
  38. Lynn Bar, Tim Gronniger, and Tim Putnam, “CMS’s Big MACRA Surprise—Physicians Will Be Judged Based on Cost in 2018 MIPS Calculation,” Health Affairs blog, Nov. 22, 2017.
  39. Krista Teske, “Your Questions About the 2017 MACRA Final Rule—Answered,” Advisory Board Expert Insight, Jan. 31, 2017.
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  41. Lawrence P. Casalino et al., “US Physician Practices Spend More than $15.4 Billion Annually to Report Quality Measures,” Health Affairs 35, no. 3 (Mar. 2016): 401–6.
  42. “Table 64: MIPS Proposed Rule Estimate Impact on Total Allowed Charges by Practice Size,” Federal Register 81, no. 89 (May 9, 2016): 28375.
  43. See the transcript of the Med PAC public meeting, Oct. 5, 2017.
  44. Kate Bloniarz and David Glass, “Approaches to MACRA implementation: Balancing MIPS and A-APMs,” MedPAC presentation, Jan. 12, 2017.
  45. Toone, Burton, and Muhlestein, “MACRA in 2017.”
  46. Tara O’Neill Hayes, “Primer: MACRA and Advanced Alternative Payment Models,” American Action Forum, Mar. 30, 2017.
  47. CMS, “Physicians and Health Care Providers Continue to Improve Quality of Care, Lower Costs,” Aug. 25, 2016.
  48. “MACRA: Disrupting the Health Care System at Every Level,” Deloitte Health Policy Brief, 2016.
  49. Maria Castellucci, “CMS Loses Money as Medicare ACOs Remain Risk-Averse,” Modern Healthcare, Nov. 3, 2017.
  50. Ashish Jha, “ACO Winners and Losers: A Quick Take,” An Ounce of Evidence blog, Aug. 30, 2016.
  51. Kristen Barlow, “3 Mandatory Bundles Will Likely Be Canceled, a 4th Scaled Back: What You Need to Know,” Advisory Board at the Helm, Aug. 16, 2017.
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  53. CMS, “Medicare Fee-for-Service 2016 Improper Payments Report.”
  54. J. Michael McWilliams et al., “Outpatient Care Patterns and Organizational Accountability in Medicare,” JAMA Internal Medicine 174, no. 6 (June 2014): 938–45.
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  58. De Brantes, “Medicare’s Bundled Payment Programs Suffer from Fatal Flaws.”
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  62. Scott Gottlieb, “House Republicans Should Break the Obamacare Mold on Doctor Pay,” Forbes, Mar. 19, 2015.
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  64. “CMS to Count Participation in MA Towards Alternative Pay Model Calculations,” Inside Health Policy, Nov. 8, 2017.
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Criminalization Without Representation

Originally published at National Review by Rafael A Mangual | October 31, 2017

Regulators shouldn’t be able to create crimes.

In early October, Senate Republicans introduced three bills to reform the federal approach to criminal justice. Earlier versions of these bills had formed the core of a legislative package that stalled under President Obama. While these measures are worthy of serious consideration, they miss a key problem in need of reform: “criminalization without representation.”  TOP ARTICLES2/5READ MOREWarren Rips Bloomberg for AllegedlyTelling Pregnant Employee to ‘Kill’ It

Anyone who paid attention in fifth-grade social studies would assume that Congress, which makes the law, knows how many crimes are on the books. But that assumption is mistaken. In fact, one of the new bills, introduced by Senator Chuck Grassley (R., Iowa), would require the attorney general to compile a list of all federal criminal offenses.

This highlights, but does not address, a fundamental defect in our justice system: Congress doesn’t know how many federal crimes there are because Congress didn’t create most of them; unelected regulators did. Rules made this way should not serve as the basis for anyone’s imprisonment. At most, those who break them should be subject to civil enforcement measures, such as fines, unless and until Congress signs off on criminalizing the conduct at issue.

According to the best estimates of scholars who have studied overcriminalization, Congress is directly responsible for approximately 5,000 of the over 300,000 criminally enforceable federal rules and regulations. Nearly 99 percent of crimes on the books were never voted on by anyone accountable to the public.

How did this happen? As the federal government inserts itself into more areas of American life — particularly since the New Deal era — it has created a growing network of bureaucracies tasked with making rules that govern everything from agriculture to corporate bookkeeping. According to the Federal Office of Personnel Management, the number of civilian employees in the executive branch has tripled since 1940.

Thanks in part to the development of legal doctrines that require courts to defer to a federal agency’s interpretations of the scope of its own authority, the federal bureaucracy has become dominant in making the rules by which we live. For every law Congress passes, federal agencies create 18 regulations, according to the Competitive Enterprise Institute’s “Unconstitutionality Index.” Many of these rules, thanks to overly broad grants of authority by Congress, have criminal teeth.

The CrimeADay Twitter account, which tracks federal crimes, provides some examples of the conduct eligible for the severe sanction of federal imprisonment. Among them are prohibitions on selling “spaghetti sauce with meat” that is less than 6 percent meat, driving on the beach at the Cape Cod National Seashore without a shovel in the vehicle, and taking a used “farm tool” from New York into New Jersey. There may very well be a good reason not to transport used farm tools from New York into other states, but should it be a crime?

Bureaucrats in administrative agencies create crimes only under congressional grants of authority. Far too often, Congress writes bills with regulatory “catch-all” provisions that deem criminal any violation of any regulation created pursuant to the statute. For example, a federal regulation promulgated by the Department of Homeland Security prohibits bringing a bicycle into a building of the National Institutes of Health. That regulation is authorized in Section 1315(c) of Title 40 of the U.S. Code, which criminalizes any “regulation prescribed” pursuant to that provision of law. That is, the violation of any regulation, no matter how trivial, authorized by that particular statute can make you a federal criminal. The U.S. Code is littered with such clauses.

We can be imprisoned for breaking rules made not by our elected representatives pursuant to a vote, but by faceless administrators.

Not only has this practice resulted in an absurdly bloated body of criminal law, it has a turned a core feature of our constitutional republic on its head. Our founders went to war in part because they were subjected to taxes they had no say in. Yet today we can be imprisoned for breaking rules made not by our elected representatives pursuant to a vote, but by faceless administrators inside the drab office buildings that house our federal agencies — people whose names never appeared on a ballot.

The vast majority of criminally enforceable rules were never presented to a congressional committee or debated on the floor of either legislative chamber. They did not survive a vote; nor were they presented to the president for a ratifying signature. Therefore, they should not form the basis for anyone’s imprisonment.

Congress can address the detachment of criminal lawmaking from the political process by requiring congressional approval of regulations as a prerequisite for criminal enforcement, restricting to the realm of civil enforcement rules that are not explicitly signed off on. If we are to achieve Abraham Lincoln’s vision of a representative government that is “of the people, by the people, for the people,” someone in Congress should consider proposing a plan to bring criminal lawmaking back into the purview of the representative branch of our government, where it belongs.

RAFAEL A. MANGUAL is a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research, and a contributing editor of City Journal.


How Policymakers Can Tackle Overcriminalization

Originally published at Cato Institute by Tim Lynch | February 16, 2017

People: Aaron Swartz, Dudley Hiibel, Bobby Unser, Eric Garner

Policymakers should

  • Override the old maxim that “ignorance of the law is no excuse” (given the breadth of the criminal codes now on the books, that doctrine no longer makes sense);
  • strengthen the rule of lenity for criminal cases by enacting a statute that explicitly provides for the strict construction of all criminal laws; and,
  • prohibit administrative agencies from creating new crimes.

Over the past 10 years, there has been much discussion in academic and policy circles concerning “mass incarceration” in the United States. Many have observed that there is something incongruous about America, the land of the free, finding itself with one of the highest incarceration rates in the world. The United States has about 2 million inmates and another 7 million persons under the “supervision” of the criminal justice system. Something is amiss, but the root of the problem is not sentencing policy; rather, it is the burgeoning criminal codes at the “front end” of the criminal system. Policymakers at all levels of government have criminalized so many activities that it should come as no surprise that our courthouses are clogged with cases and our prisons are overflowing with inmates. Politicians have recklessly sought short‐​term political advantage by taking “credit” for new laws while ignoring the long‐​term consequences of their policy decisions. It is no overstatement to say that the politics of criminalization threaten the very foundation of our free society.

The Legal Minefield

Every year American lawmakers add new crimes to the law books. Under the Constitution, crime fighting is supposed to be reserved to state and local government. But over the past 40 years, Congress has federalized many of the crimes that have always been investigated by local police. Politicians have also found ways to recriminalize criminal conduct. “Hate crimes,” for example, duplicate crimes such as murder and assault and add stiffer penalties when prosecutors can prove that bigotry was a motivating factor behind the violence.

The criminal law has also followed the rise of the regulatory state. In addition to the thousands of criminal laws, there are now tens of thousands of regulations that carry criminal penalties, including prison time. The web of rules has become so vast that it seems as if most Americans are now criminals whether they realize it or not.

The overcriminalization phenomenon extends beyond the realm of violence, fraud, vice, and commercial regulations. Consider these cases:
• A river guide saw a teenager in distress and so left his boat and swam to save her. He was charged with “obstructing government operations” for not waiting for the search and rescue team.
• Federal prosecutors indicted computer prodigy Aaron Swartz for improperly downloading articles from the digital library JSTOR. The Justice Department maintains that when a website owner’s terms‐​of‐​service policy is violated, a crime is also committed — even though owners retain the right to change the terms at any time and without prior notice. Frightened by the prospect of bankruptcy, a long prison sentence, or both, Swartz took his own life.
• Retired race car driver Bobby Unser was prosecuted by federal authorities for driving his snowmobile on protected federal land. Unser and his friend got lost during a snowstorm and were desperately seeking shelter or assistance.
• Nevada rancher Dudley Hiibel was jailed for declining to give his name to a policeman.
• Members of a Christian outreach group were arrested and prosecuted for feeding the homeless in a Ft. Lauderdale park. Local rules restricted food sharing.

There was a telling moment before the Supreme Court in 2009 when a government lawyer was explaining the scope of the federal “honest services” law. The lawyer from the Department of Justice said that law criminalized any ethical lapse in the workplace. In response, Justice Stephen Breyer exclaimed, “There are 150 million workers in the United States. I think possibly 140 million of them flunk your test.” The government lawyer did not deny Justice Breyer’s observation. As unbelievable as it may sound, the federal government considers more than a hundred million Americans to be criminals. And that is only under its interpretation of a single federal statute. As noted, there are thousands and thousands more. The overcriminalization phenomenon is thus quite real.

The Consequences of Overcriminalization

There are several reasons to be alarmed by the exponential growth of criminal rules and regulations. First and foremost, America has always prided itself on its freedom; but a society in which the criminal rules are so pervasive that no one is safe from arrest and prosecution cannot be described as free. The traditional common law crimes — murder, rape, theft, assault — do not restrict the freedom of the citizenry to live their own lives peaceably. However, as soon as the government goes beyond the basic crimes to prohibit other human activities, the adverse impact on liberty becomes evident. As the criminal law expands, there is a concomitant diminution of liberty.

Second, when criminal code violations become virtually unavoidable, the safeguards in the Bill of Rights become ineffectual. As the Harvard legal scholar Henry Hart observed, “What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?” Hart’s point was that if some rule can be shown to have been violated, a speedy trial cannot help the person facing a prison sentence. And an able defense attorney can only help his client by making a plea for leniency.

Third, law enforcement resources are limited. The police and courts are busy enough with violent crimes, theft, and extortion. Those cases will be neglected if the police are burdened with additional responsibilities. Andrew McCarthy, a former federal prosecutor, reminds us that there is no getting around the tradeoff: time and money “spent investigating conduct that is not inherently criminal are time and money lost to the thwarting of much more serious crime.”

Fourth, policymakers should always pause to remember that every rule brings about the possibility that the police will have to employ violence to enforce that rule. Eric Garner was killed by New York City police as they were trying to enforce a rule against selling individual cigarettes (“loosies”) on the street. Yale Law School professor Stephen Carter has noted that if policymakers want to seriously reduce the opportunities for dangerous interactions between police and civilians, they should stop talking about “better police training” and scale back the criminal codes.

Fifth, another inevitable consequence of overcriminalization has been more governmental errors. Innocent people are sometimes arrested, prosecuted, and imprisoned. Wrongful convictions are not only unjust to the prisoner, but to his or her family — children, spouse, parents, and siblings. One effective way to limit those miscarriages of justice is to keep the criminal system as small as possible. If America has two million people imprisoned and the government has done its job properly in 95 percent of the cases, that means 100,000 people are unjustly imprisoned. By scaling back the criminal codes, so that the total number of people prosecuted and imprisoned is reduced, policymakers could also reduce the number of innocent persons mistakenly imprisoned.

Reform Measures

Of course, overcriminalization can be addressed in many ways. The following are three possible routes to correcting the system.

Override the Old Maxim That “Ignorance of the Law Is No Excuse”

It is absurd and unjust for the government to impose a legal duty on every citizen to “know” all of the mind‐​boggling rules and regulations that have been promulgated over the years. The old maxim that “ignorance of the law is no excuse” only makes sense when the criminal law covers conduct that is plainly and inherently wrongful, such as murder and theft.

To illustrate the rank injustice that can occur, take the case of Carlton Wilson, who was prosecuted because he possessed a firearm. Wilson’s purchase of the firearm was perfectly legal. Years later, a judge issued a restraining order against Wilson during his divorce proceedings. He didn’t know that meant he had to give up the firearm. When Wilson protested that the judge never informed him of that obligation and that the restraining order itself said nothing about firearms, prosecutors shrugged, “ignorance of the law is no excuse.” Although the courts upheld Wilson’s conviction, Judge Richard Posner filed a dissent: “We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson’s milieu is able to take advantage of such an opportunity.” Judge Posner noted that Wilson would serve more than three years in a federal penitentiary for an omission that he “could not have suspected was a crime or even a civil wrong.”

Policymakers should override the “ignorance‐​is‐​no‐​excuse” maxim by enacting a law that requires prosecutors to prove that regulatory violations are “willful” or, in the alternative, that permits defendants to plead a good‐​faith belief in the legality of one’s conduct. The former rule is already in place for our complicated tax laws. It should also shield unwary Americans from all laws and regulations as well.

Strengthen the Rule of Lenity

Even if there were only a few crimes on the books, the terms of our criminal laws ought to be drafted with precision. After all, there is little difference between a secret law and a published regulation that cannot be understood. The American Revolutionaries believed in the Latin maxim nullum crimen sine lege, which means there can be no crime without a law. In other words, people can be punished only for conduct previously prohibited by law. That principle is clearly enunciated in the ex post facto clause of the Constitution (Article I, Section 9). But the purpose of that clause can be subverted if the legislature can enact a criminal law with vague terms that can be interpreted broadly by prosecutors or judges. Such a law would not give citizens fair warning of the prohibited conduct.

One way to address the problem of vague laws that were previously enacted would be for legislators to direct the courts to follow the “rule of lenity.” That doctrine resolves legal uncertainties in favor of the accused, not the government. Unfortunately, the courts have not invoked that doctrine consistently.

Prohibit Administrative Agencies from Creating New Crimes

Beyond the thousands of criminal statutes enacted by legislatures, there are also thousands of regulations that carry criminal penalties. It is the responsibility of elected officials to carefully consider what infractions can result in a criminal conviction and prison time.

The case law that has thus far allowed the delegation of lawmaking has drawn criticism. U.S. district judge Roger Vinson, for example, has observed:

A jurisprudence which allows Congress to impliedly delegate its criminal lawmaking authority to a regulatory agency such as the Army Corps — so long as Congress provides an “intelligible principle” to guide that agency — is enough to make any judge pause and question what has happened. Deferent and minimal judicial review of Congress’ transfer of its criminal lawmaking function to other bodies, in other branches, calls into question the vitality of the tripartite system established by our Constitution. It also calls into question the nexus that must exist between the law so applied and simple logic and common sense.

Making conduct criminal is a serious matter. It is a decision that ought to be made by the people’s elected representatives, whether in Congress, the state legislatures, or city councils.


Political observers have noted that criminal justice reform is one of the few policy areas that is now finding support from across the political spectrum. On the left, law professor Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, tells her students that even though she has earned fancy degrees, she is a criminal. She challenges others to come clean as well. After all, just because a person has not been caught does not mean she is not a criminal in the eyes of the law. Alexander believes reform will happen when more people come to terms with their own “criminality.” On the right, U.S. circuit judge Alex Kozinski makes a similar point in his article, “You’re (Probably) a Federal Criminal.” Most Americans are criminals, but don’t know it, he writes.

There are some indications that the policy climate is becoming more receptive to fundamental reform. A recent cover story in Harper’s was titled, “Legalize It All: How to Win the War on Drugs.” A few weeks later, a cover story in The New York Times Magazine posed the question, “Should Prostitution Be a Crime?” While these questions are still being debated, it seems clear that more and more people are coming to recognize that vices are not crimes that warrant the intervention of police powers. Over the past few years, policymakers in Vermont, Maine, Colorado, and New Hampshire have voted to repeal criminal laws regarding adultery. These developments are welcome, but policymakers should move more aggressively toward criminal code reform and prune the law books of unnecessary and unjust criminal provisions. An expansive criminal code is inimical to a free society.


How Policymakers Should Reform White Collar Prosecutions

Originally published by Cato Institute by Walter Olson | February 16, 2017

Congress and state lawmakers (and where appropriate, the president and executive branch law enforcement officials) should

• review existing law with an eye toward rolling back overcriminalization and replacing criminal penalties with civil sanctions where feasible;
• enact reforms such as the model Criminal Intent Protection Act to bolster recognition of mens rea (punishment should ordinarily require a guilty state of mind, not inadvertent noncompliance) as well as the related mistake of law defense in criminal law;
• codify the common law rule of lenity (ambiguity in law should be resolved against finding guilt), as Texas joined other states in doing in 2015;
• devise safe harbor provisions that enable economic actors to avoid criminal liability by behaving reasonably and in intended compliance with the law;
• limit agency discretion to create new crimes without an act of the legislature;
• enact guidelines to strengthen judicial oversight of deferred prosecution agreements and nonprosecution agreements (explicit court approval, not the unilateral say‐​so of government prosecutors, should be required for appointment of corporate monitors or the extension of time under supervision);
• enact asset forfeiture reforms such as Rep. Jim Sensenbrenner’s (R‑WI) Due Process Act, including requiring that conviction be a prerequisite for forfeiture;
• review and, where appropriate, reduce or coordinate per‐​offense fines and sanctions to avoid levying penalties disproportionate to the gravity of misconduct;
• prohibit, as a proposed New Mexico law would do, the allocation of settlement moneys (cy pres) to charities, nonprofits, or advocacy groups not themselves injured;
• assign penalties, forfeitures, and settlement proceeds to the public treasury or, where appropriate in certain cases, to private parties who can show specific individual injury from the offense (penalties should not fund particular government agencies in ways that incentivize zealous enforcement or insulate the agencies from appropriations oversight);
• prohibit the payment of public lawyers and forensics experts on contingency, that is, in ways dependent on case outcome or the magnitude of penalties (this principle should apply alike to career prosecutors, other staff public lawyers, experts, and outside law firms); existing contingency arrangements should be terminated;) and
• impose transparent principles of selection and payment on outside contracting for legal services.

Prosecution: A Climate of Abuse

“The increasing criminalization of corporate behavior in America,” noted The Economist in 2014, “is bad for the rule of law and for capitalism.” In fact, the British weekly noted, prosecution as a means of regulating business in the United States has become “an extortion racket… . The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company… .

“Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people — with souls and bodies — were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs.”

Many abuses arise from prosecutors’ search for publicity and glory. These include splashy raids on offices and “perp walks” for executives, in situations where a simple request to cooperate would have sufficed, and manipulation of the media through leaks and prejudicial publicity.

The most natural way to address prosecutorial abuse might seem to be disciplinary sanctions based on traditional standards of legal ethics and applied by judges or bar panels. The trouble with relying on that solution is that few prosecutions of large businesses eventuate in trial before a judge. When a business does put up a fight, it sometimes wins big. In 2016, after the Department of Justice (DoJ) indicted the FedEx Corporation on charges that it had knowingly done business with illegal pharmacies, FedEx refused to settle; once before a judge, DoJ’s case collapsed in spectacular fashion and it dropped the charges midtrial. Much more often, however, businesses faced with a doubtful or overreaching prosecution take their lawyers’ advice and fold their hands and try to get the best possible settlement. For businesses based on trust or regulatory permission, the costs and risks of defying federal law enforcement — legal, reputational, and otherwise — are just too high. The government has the upper hand. That is one reason lawmakers need to step in.

Overcriminalization and the Need for Clear and Compliable Law

There are now more than 4,000 federal criminal offenses, up from approximately 165 in 1900, 2,000 in 1970, and 3,000 in 1982, along with hundreds of thousands of regulations backed up by criminal sanction.

Under the rule of law, citizens should be able to arrange their actions so as to avoid the commission of crimes. Yet the proliferation of highly technical laws, many going beyond the prohibition of intrinsically wrongful acts, makes it more likely that even a careful business with thousands of employees will commit some violations — especially if criminal infraction of regulations can be assessed without reference to mens rea (i.e., guilty intent).

As Sen. Ted Cruz (R‑TX) has written, “Congress should enact legislation that requires the government to prove the defendant knowingly violated the law — or that, at least, allows a ‘mistake of law’ defense — for certain classes of crimes that have no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the government has criminalized non‐​blameworthy conduct for regulatory purposes, ignorance of the law should be a valid defense to criminal liability.”

Four Outrageous Business Prosecutions

• “When I got there, there were people in SWAT attire that evacuated our entire factory.” Thirty federal agents raided the headquarters of Nashville’s legendary Gibson Guitar, carting away a fortune in wood and instruments and interrogating staff without benefit of a lawyer. The charge was that the company had used small quantities of imported wood without doing enough to ascertain suppliers’ compliance with a federal law called the Lacey Act. Gibson’s chief executive officer — who “had not received so much as a postcard telling the company it might be doing something wrong” — got a letter the next day warning him that if he so much as touched any guitar left in the plant he could be charged with a separate federal offense, with possible jail time, for each “violation.” After much press coverage sympathetic to the company, the feds settled for a relatively low $300,000, a sum far below what Gibson would have been likely to pay in legal defense, and returned the seized instruments.
• The federal government extracted more than a billion dollars from Toyota in a settlement, even though its own engineers at the National Highway Traffic Safety Administration cleared the Japanese automaker of charges that its cars were subject to runaway acceleration. The penalties were mostly premised on minor regulatory infractions unrelated to any injuries or accidents. The Department of Justice’s press announcement employed language suggesting that the problem of mechanical acceleration had been real, though Washington had good reason to know better.
• The federal government and various states, notably New York, launched enforcement actions against major banks whose actions, it was alleged, had helped propel the mortgage bubble and crash of 2008. No one really knew, and no court ever decided, whether the charges were true or what a suitable penalty level might be. When the dust settled, major banks had agreed to pay record settlements, some going to investors and consumers, but with hundreds of millions also going to nonprofit organizations that the various law enforcement officials saw as worthy causes — which, in the case of the Obama administration and the attorney general of New York, happened also to be close political allies.
• Several small family‐​owned retailers, including a Maryland dairy farm, a Detroit‐​area grocery, and a North Carolina convenience store, violated the little‐​known federal “structuring” law, which prohibits depositing money into banks in sums under $10,000 so as not to trigger a paperwork filing to the government, even when no tax or other laws are being evaded in the process. Federal agents seized the families’ bank accounts. With volunteer legal help, and amid public outcry, all three businesses managed to get their money back. But many other small businesses swept up by the same law, sometimes unable to pay lawyers because of the freeze on their assets, had by that time capitulated to large forfeitures.

The situation is even worse when laws are so vague that even reading them does not give fair notice of what they prohibit. Courts are inconsistent about applying the “rule of lenity” (ambiguities should be resolved against finding guilt) and the “void for vagueness doctrine” (laws can fail constitutional muster if they leave too much doubt about what they prohibit). As a result, certain areas — including federal mail and wire fraud, “honest services” fraud, antitrust law, and securities law — have proved particularly resistant to clarification.

In recent years, the U.S. Department of Justice has also sought to expand something called the “responsible corporate officer doctrine.” That doctrine allows the government to hold executives criminally liable for the sins of the corporation generally, even when those executives have not been shown to personally hold a guilty state of mind. Although the doctrine somehow passed muster at the U.S. Supreme Court in the cases of United States v. Dotterweich (1943) and United States v. Park (1975), it is ripe with potential for injustice.

Settlements and Slush Funds

Deferred prosecution agreements (DPAs) and their close relatives, nonprosecution agreements (NPAs), have become a major tool of white‐​collar prosecution in recent years. Typically, in exchange for avoiding trial, a business defendant agrees to some combination of cash payment, agreement to change behavior, and submission to future oversight by DoJ. Often, DoJ assigns “monitors” with broad, vaguely defined powers to oversee the affairs of defendant companies and report back to Washington on an ongoing basis.

NPAs at the federal level date back only to 1992. But they have multiplied rapidly, from 1 or 2 a year in the nineties to more than 30 a year during the Obama administration. Since 2010, 16 of the largest U.S. businesses have come under Department of Justice supervision, with tens of billions of dollars extracted in settlements.

Notably, in these agreements, a business defendant may pledge to alter its future course of action in ways that a court would never have ordered had the case gone to trial but that the government is interested in extracting as concessions. These deals may have the effect, or even the aim, of helping or hurting third parties who have the ear of the government, such as customers or competitors of the targeted defendant.

“Without any adjudication to establish wrongdoing and without any judicial oversight, businesses have agreed through these settlements to remove or replace key officers and directors; to change sales, marketing, or compensation plans; and to appoint new officers or independent ‘monitors’ reporting to prosecutors but paid by the companies,” write James Copland and Isaac Gorodetski. The two argue that this process adds up to a “shadow regulatory state” lacking many of the administrative law protections of the visible regulatory state. Appointed monitors, in particular, can wield ill‐​defined but wide‐​ranging power with little accountability if it is put to heavy‐​handed use.

What to do? The United Kingdom took an early lead with its 2013 Crime and Courts Act, which, among other provisions, directs judges to determine that the provisions of DPA equivalents are “fair, reasonable, and proportionate.” In the U.S. Congress, a proposal called the Accountability in Deferred Prosecution Act of 2014 attempted to pursue similar principles. Much more is needed if U.S. law is to catch up with the institutional reality of a Department of Justice that has become the nation’s most powerful business regulator without anyone’s having designed it that way.

At base, the case for civil liberties in the business world is much the same as the case for civil liberties generally. Businesses deserve impartial prosecution in the interests of justice, not merely scoring wins for the government; speedy trial and clear exposition of charges; determination of guilt on an individualized, not group, basis; no excessive punishment; protections against baseless search and seizure; and, in general, the full range of due process protections. The marketplace, like the rest of American society, deserves the full protections of the U.S. Constitution.

Suggested Readings

American Legislative Exchange Council. “Criminal Intent Protection Act,” amended May 6, 2016, and “Treating Accused Persons Fairly Act,” amended May 6, 2016. Model Policy. Arlington, VA: American Legislative Exchange Council, 2016.

Carpenter, Dick M. II, Lisa Knepper, Angela Erickson, and Jennifer McDonald. Policing for Profit: The Abuse of Civil Asset Forfeiture. 2nd ed. Arlington, VA: Institute for Justice, November 2015.

Copland, James R., and Isaac Gorodetski. “The Shadow Lengthens: The Continuing Threat of Regulation by Prosecution.” Legal Policy Report no. 18, Manhattan Institute, February 25, 2014.

—. “Without Law or Limits: The Continued Growth of the Shadow Regulatory State.” Legal Policy Report no. 19, Manhattan Institute, March 26, 2015.

The Economist, “The Criminalization of American Business,” August 30, 2014.

Frank, Theodore H., “Cy Pres Settlements.” Testimony before the House Judiciary Committee, Subcommittee on the Constitution and Civil Justice Examination of Litigation Abuse, 113th Cong., March 13, 2013.

Larkin, Paul. “Regulatory Crimes and the Mistake of Law Defense,” Heritage Foundation Legal Backgrounder, July 9, 2015.

Reddy, Vikrant, and Marc Levin. “Five Solutions for Addressing Environmental Overcriminalization.” Inside ALEC. May/​June 2013.

Shapiro, Ilya, and Randal John Meyer. “Obama’s Weaponized Justice Department” (responsible corporate officer doctrine). National Review, October 30, 2015.

Washington Legal Foundation. “Timeline: Erosion of Business Civil Liberties.” 3rd ed. 2015.


Let’s End Criminalization Without Representation

Originally published at National Review by JIM COPLAND & RAFAEL A. MANGUAL | 1/14/2017

Determining what is and what isn’t a crime should be part of the political process.

In his recent article in the Harvard Law Review, “The President’s Role in Advancing Criminal Justice Reform,” President Obama touts his administration’s successes while blaming Republican leadership for the failure to pass comprehensive criminal-justice reform, one of his administration’s last-year priorities. In the president’s words, the GOP leadership simply has “not yet allowed [reform bills] to come to the floor for a vote.”

The president’s interest in criminal-justice reform is laudable, but his assignment of blame is disingenuous: The lack of legislative progress owes to his unwillingness to compromise and the White House’s own outspoken opposition to Republican priorities. Specifically, the administration and left-leaning allies have opposed any federal efforts to address over-criminalization, or the rapid growth of criminal rules and regulations that punish conduct that is not intuitively wrong, often without regard for the actor’s intent.

One of the core drivers of over-criminalization is that 98 percent of the more than 300,000 crimes on America’s books were never voted on by Congress. We at the Manhattan Institute have dubbed this phenomenon “criminalization without representation.” In our view, it represents one of the most egregious usurpations of power by the state from the people in American history.

According to a count done in 2007, “only” 4,450 federal criminal statutes were on the books. The vast majority of criminally enforceable rules are set out in the Code of Federal Regulations. The CFR’s provisions are the products of decisions made by unelected, politically unaccountable bureaucrats. Contrary to what we were told by “Schoolhouse Rock,” very few criminal laws are debated and passed by Congress and signed by the president. Fewer than 2 percent of criminally enforceable federal rules come from our elected representatives.

This trend is not limited to the criminal law. According to the Competitive Enterprise Institute, for every law Congress passes, federal agencies create 18 rules.

Though this practice has been normalized over the past few decades with the growth of the modern regulatory state, it is a sharp departure from our nation’s philosophical roots. Elected representatives — and, by extension, those they represent — have not had a meaningful say in whether conduct should be criminalized. The Declaration of Independence specifically states that the government’s just powers are derived “from the consent of the governed.”

By taking crime creation almost entirely out of the political process, the government has stripped the governed of the opportunity to consent to, or not, the thousands upon thousands of outmoded, obscure, and often overreaching rules that litter the Federal Register — and threaten the unsuspecting citizen with criminal prosecution. The isolation of criminal lawmaking from the political process has also stripped citizens of the ability to hold anyone accountable for the creation of a given criminal offense.

The isolation of criminal lawmaking from the political process has also stripped citizens of the ability to hold anyone accountable for the creation of a given criminal offense.

Some might argue that we haven’t really been denied representation insofar as we can vote out the representatives who engage in the sort of delegation that created the labyrinth of crimes that now exists. Leave aside that we never formally agreed to depart from the traditional political process in the first place; the offspring of delegation outlives the delegators. To undo the consequences, congressional replacements would have to work through a process that their ousted predecessors weren’t required to work through in creating the problem they were elected to fix. That hardly seems efficient or fair.

While the president in his law-review article does identify problems worthy of serious congressional debate, the absence of any reference to the over-criminalization problem is discouraging, and that omission explains the failure of the Obama administration to enact meaningful criminal-justice reform. In light of President-elect Trump’s stated intent to reduce the regulatory burden faced by Americans, his administration ought to give serious consideration to supporting criminal-justice reform legislation that, in addition to addressing issues such as sentencing guidelines and intent requirements, would require Congress to act before a regulation can be criminally enforced. Doing so would put the power to criminalize back in the hands of the people’s representatives, where it has always belonged.


Homemade Ceviche Case Exemplifies Need to Address Overcriminalization

Originally published at The Orange County Register by James R. Copland and Rafael A. Mangual | 11/17/16

Mariza Ruelas, a single mother in Stockton, California, is facing possible jail time for offering to sell her homemade ceviche, a Latin American seafood dish, through a Facebook group in which users swap recipes and occasionally swap meals. A man took her up on her offer, but unbeknownst to Ms. Ruelas, he was a government agent working on an undercover sting operation targeting those who sell food without a license.

Ms. Ruelas’s case is part of a trend of “overcriminalization,” a term describing the rapid expansion, and increased complexity, of criminally enforceable rules and regulations regarding conduct that is not intuitively wrong.

At the federal level alone, there are an estimated 300,000 criminally enforceable rules and regulations. The five states we have studied to date in our “Overcriminalizing America” research project average more than 570 percent more sections in their criminal codes than in the Model Penal Code, the template established by leading legal scholars that forms the criminal-law basis for most states, and they are enacting, on average, more than 42 new crimes on the books, each and every year. More than three-fourths of these new crimes have been scattered around state statutes outside the criminal codes themselves. States also regularly outsource the creation of crimes to unelected commissioners, administrative agencies and even private licensing associations.

In 2013, California enacted the California Homemade Food Act, intended to help what the law called “cottage food operations” but still ensnared Ms. Ruelas. Any violation of the law’s multiple provisions — it numbers almost 7,000 words — is a misdemeanor. The law criminalizes food sales for anyone who has not registered paperwork with government authorities, and it prohibits such operations in kitchens that are also used to prepare family meals or wash dishes.

Clearly, Ms. Ruelas violated the express provisions of the act — even though she claims she meant to do nothing wrong. Traditionally, under American law and the British law upon which it is based, the state had to prove a “guilty mind” to prosecute an individual of a crime. Today, however, states regularly prosecute individuals for crimes that specify no necessary criminal intent. Fifteen states follow the Model Penal Code in mandating a default criminal-intent requirement where statutes are silent, but others, including California, assume that if the legislature fails to specify any level of criminal intent, no showing of intent is required.

Individuals acting in good faith like Mariza Ruelas should be able to go through daily life without having to worry about ending up behind bars. California could pursue steps to make its criminal law more manageable by enacting a criminal-intent default standard, requiring legislative votes on any regulatory crimes, or following the lead of other states that have held special legislative sessions or creating commissions to repeal outdated crimes and reform the criminal law. Special attention should be paid to the occupational licensing space.

While not entirely curative, adopting these reforms would represent a meaningful first step toward addressing the overcriminalization problem. Until then, well-meaning citizens like Mariza Ruelas will remain at risk of imprisonment for conduct as seemingly innocent as selling some homemade food for a few extra bucks.

James R. Copland is a senior fellow and Rafael A. Mangual a legal-policy project manager for the Manhattan Institute for Policy Research.


Enforcement Maze: Overcriminalizing American Enterprise Conference

Originally published at NACDL | May 20, 2018

On May 26, 2016, NACDL co-hosted a free law and policy symposium with the U.S. Chamber of Commerce’s Institute for Legal Reform entitled The Enforcement Maze: Over-Criminalizing American Enterprise. The day-long symposium featured key leaders from industry, academy, law and policy across the political spectrum. [Released August 2018]August 07, 2018


Together they addressed the rise of overcriminalization, the inappropriate criminalizing of civil and regulatory matters, why laws need criminal intent requirements, fundamental flaws with the plea bargaining process, criminal discovery abuses and inadequacies of the grand jury process, as well as the use of certain pressures associated with enforcement against business and corporate individuals. House Judiciary Chairman Bob Goodlatte gave the morning keynote address; keynote lunch address was given by former Deputy Attorney General David Ogden; and Senator Orrin Hatch gave closing remarks. Most of the symposium’s panelists prepared original scholarship for this symposium that has been compiled into a compendium published in August 2018.

Enforcement Maze report banner

This Symposium was produced as a joint project of the National Association of Criminal Defense Lawyers, and the U.S. Chamber of Commerce Institute for Legal Reform.

As a follow up to the symposium, on August 7, 2018, NACDL released a compendium of original scholarship by symposium panelists on subjects ranging from deferred prosecution agreements to discovery, and from federal conspiracy law to grand jury reform, and so much more. The compendium also includes remarks delivered by House Judiciary Chairman Bob Goodlatte (VA), former Deputy Attorney General David Ogden, and U.S. Senator Orrin Hatch (UT).

Enforcement Maze report partners


  • The Honorable Bob Goodlatte, U.S. House of Representatives (R-VA 6th District) and Chairman, House Committee on the Judiciary


This panel discussed the inappropriate criminalization of what are truly civil or regulatory/administrative problems/disputes as well as inadequate criminal intent requirements and the problem with strict liability crimes.  

  • Reginald J. Brown, Partner and Chair, Financial Institutions Group, Wilmer Cutler Pickering Hale and Dorr LLP
  • John F. Lauro, Principal, Lauro Law Firm
  • Kate C. Todd, Senior Vice President and Chief Counsel, U.S. Chamber Litigation Center

Moderated by: John D. Cline, Principal, Law Office of John D. Cline


This panel addressed over-charging/overzealous enforcement and the pressures on businesses and individuals under investigation and engaging in plea bargaining, including collateral consequences for companies (debarment, exclusion) and for individuals (jail, loss of licenses). 

  • John H. Beisner, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
  • Beth J. Hallyburton, Assistant General Counsel, GlaxoSmithKline
  • Kurt Mix, Former Deepwater Drilling Engineer, BP America
  • Barry J. Pollack, Member and Chair, White Collar & Internal Investigations Practice, Miller & Chevalier

Moderated by: Harold H. Kim, Executive Vice President, U.S. Chamber Institute for Legal Reform


This TED Talk-inspired presentation discussed the manner in which these two phenomena relied on each other to come to dominate our modern criminal justice system. 

  • Lucian E. Dervan, Associate Professor of Law, Southern Illinois University School of Law


Special Remarks byLisa A. Rickard, President, U.S. Chamber Institute for Legal Reform

Keynote Address 

  • The Honorable David W. Ogden, Partner, Wilmer Cutler Pickering Hale and Dorr LLP and Former Deputy Attorney General of the United States


This discussion featured two legal experts and explore the inadequacies and abuses of two important facets of criminal procedure that combine to create an unfair playing field for persons and entities. 

  • Ross H. Garber, Partner, Shipman & Goodwin LLP
  • Timothy P. O’Toole, Member and Chair, Pro Bono Committee, Miller & Chevalier


This TED Talk-inspired presentation discussed the ways in which federal prosecutors have increasingly pressured corporations to enter into deferred- or non-prosecution agreements that entail not only hefty fines but significant changes to business practices, with no showing of wrongdoing or judicial supervision. 

  • James R. Copland, Senior Fellow and Director, Legal Policy, The Manhattan Institute


This panel explored the impact of the recent “Yates Memorandum” – a directive from Sally Quillian Yates, Deputy Attorney General of the United States, regarding individual accountability for corporate wrongdoing. 

  • Lisa A. Mathewson, Principal, The Law Office of Lisa A Mathewson
  • Matthew S. Miner, Partner, Morgan, Lewis & Bockius LLP
  • Ellen S. Podgor, Gary R. Trombley Family White-Collar Crime Research Professor and Professor of Law, Stetson University College of Law

Moderated by: Barry Boss, Co-Chair, Criminal Defense & Internal Investigations, Cozen O’Connor


This panel addressed the erosion of respect for criminal law, costs incurred by taxpayers, over-incarceration, and the squashing of business ingenuity and growth, and will explore solutions to these problems. 

  • Christopher Bates, Counsel to Senator Orrin Hatch, Senate Committee on the Judiciary
  • Douglas A. Berman, Robert J. Watkins/Procter & Gamble Professor of Law, The Ohio State University Moritz College of Law
  • Joseph Luppino-Esposito, Policy Analyst, Center for Effective Justice & Right on Crime
  • Shana O’Toole, Director of White Collar Crime Policy, National Association of Criminal Defense Lawyers

Moderated by: Jonathan Bunch, Vice President & Director of External Relations, The Federalist Society


  • The Honorable Orrin Hatch, U.S. Senate (R-UT), Chairman, Senate Finance Committee and Former Chairman, Senate Judiciary Committee

Accidental Felons: The Unwitting Criminal Activity of Average Americans

Originally published at Charles Koch Institute | April 12, 2016

According to attorney Harvey Silverglate, the average American inadvertently commits three arguable felonies in a given day. How is possible that Americans could commit so many felonies without knowing it?

Consider this: The U.S. Code—the consolidation of our country’s laws and regulations, broken down into sections such as agriculture (Title 7), banking (Title 11), public lands (Title 43), and more—contains over 4,500 federal crimes and more than 300,000 federal regulations that carry criminal penalties. Rather than being organized together, those crimes and regulations are scattered throughout the code’s 54 titles. Additionally, the states have their own criminal statutes and regulations that carry criminal penalties.

Many of these statutes and regulations criminalize ordinary activities that would not have historically been considered criminal, like shipping lobsters in the wrong packaging or collecting arrowheads from your campground.

While ignorance of the law has never been a sound defense, the sheer number of laws currently on the books—and the fact that crimes are poorly defined and scattered throughout the code—makes it unreasonable to expect the average citizen to be aware of all the activities that could be considered criminal.

Even more troubling is the growing number of statutes and regulations that do not require the government to prove criminal intent in order to obtain a conviction. Historically, a crime consisted of both a guilty act (actus reusand a guilty state of mind (mens rea). But the absence of an intent requirement enables the criminal prosecution of people who have committed acts that are not commonly considered criminal without the necessary level of intent.

Overcriminalization and prosecution without proof of criminal intent erode the rule of law that protects individual liberties and makes the United States an example to many other nations.

New Mexico has distinguished itself as a leader on criminal justice reform by revising its civil asset forfeiture practices. But there is more work to be done. Examining New Mexico’s approach to criminal intent could further the state’s reform efforts by increasing the effectiveness and justness of its criminal justice system.


Heritage Report: The FAA Drone Registry: A Two-Month Crash Course in How to Overcriminalize Innovation

Originally published at The Heritage Foundation by Jason Snead and John-Michael Seibler | 3/8/16

Two months: That is all the time an executive branch agency needs to create a crime.

With passage of the 2012 FAA Modernization and Reform Act, Congress explicitly told the Federal Aviation Administration to leave recreational drones alone, but the FAA has charged ahead anyway. In just two months, with no input from Congress or the public, unelected and unaccountable bureaucrats have devised a way to apply the pre-existing aircraft registration penalties to create a federal felony offense that can result in up to three years in prison and up to $277,500 in fines for failing to register as the owner of a qualifying drone—essentially a toy.

As bad as this is for unwary drone owners, the real legacy of the FAA’s drone registry may be much broader. To justify its rushed regulatory action, the FAA, relying on trumped-up claims about the risk and harms associated with drone use, has asserted its regulatory muscle to protect society from these as yet unrealized dangers. Such thinking has important ramifications for the regulation of innovation and may be only a foretaste of future regulatory actions that deter or dissuade adoption of some new and innovative technologies.

FAA Violation of Rulemaking Requirements

The FAA’s drone registry went into effect remarkably quickly.[1] On October 22, 2015, the FAA published a rule determining that drones are subject to existing aircraft registry requirements.[2] One month later, the agency’s special drone registry task force, composed of government and industry representatives, released a report outlining specific recommendations for a “streamlined” registration process.[3] Three weeks later, the FAA published its “interim final rule” establishing the recreational drone-owners’ registry.[4] Seven days after its release, the rule went into effect, and it officially became a federal felony to operate a drone weighing more than 0.55 pounds without first registering as a drone owner.

From start to finish, the regulatory process took two months to complete.

Agency rulemaking is governed by two primary sources of law: the Administrative Procedure Act (APA) and the Chevron doctrine, which enables agencies to promulgate regulations when Congress has delegated that power with adequate “guidelines.” The FAA registry pushes the boundaries of what an agency can do under both.

The swiftness of the FAA’s drone action was possible only because it bypassed many of the requirements set forth in the APA, which governs most agency rulemaking. Under the APA,[5] administrative agencies must generally publicize their intent to promulgate new regulatory rules by filing a notice of proposed rulemaking (NPRM) in the Federal Register. Interested parties then have from 30 to 60 days to file comments with the agency, which then must consider the public’s input before publishing a final rule. Under the APA, a new regulation generally cannot take effect for at least 30 days after its final publication.[6] This process can take months or years to complete. The requirements of the APA clearly place a premium on public involvement, transparency, and fair notice over swiftness in the regulatory process.

There are exceptions, though, since circumstances can arise that require unusually rapid action on the part of regulatory bodies. To that end, the APA creates a “good cause” exemption to the notice-and-comment process if an agency can show that adhering to the APA’s requirements is “impracticable, unnecessary, or contrary to the public interest.”[7] This is meant to be a narrow exemption, not a way to circumvent the APA’s broader requirements merely for reasons of bureaucratic expediency.

In creating its new drone-owners’ registry, the FAA claimed this exemption,[8] owing to the immediate dangers that the agency has alleged stem from the proliferation of drones in the national airspace.[9] According to the FAA, “it is critical that the Department be able to link the expected number of new unmanned aircraft to their owners and educate these new owners prior to commencing operations.”[10] But there are reasons to doubt the FAA’s claims that drones have suddenly become a problem and that it could therefore not countenance any delay.

  • The rapid growth of small, recreational drones is not new; in fact, Congress legislated on the subject of drone policy in 2012, fully three years before the FAA claimed a sudden exigency to justify rushing its registry into effect.
  • Claims of immediate danger are greatly exaggerated. There is no documented instance of a drone colliding with another aircraft, and it is unclear how dangerous such a collision would be.
  • The number of incidents—interference with emergency services, near-collisions, and other criminal misdeeds—is insignificant compared to the number of drones in circulation. For example, the FAA reported 764 unconfirmed drone sightings near airports or aircraft over an 11-month period at a time when there were possibly as many as a million registry-eligible drones in the hands of consumers.[11]

A full analysis of the FAA’s claimed APA exemption is beyond the scope of this paper, but it is clear that there is reason to doubt the validity of the agency’s claims. In the process of rushing its registry, the FAA exposed hundreds of thousands of drone owners to steep civil and criminal penalties for conduct that is not inherently wrongful and that was not unlawful before the rule went into effect.

The U.S. Supreme Court’s 1984 opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.[12] clarified when and how a federal agency can make binding rules.[13] Congress can and often does delegate its legislative power to agencies with guidelines to administer a certain regulatory mission. This enables Congress to write broad legislation and leave the job of filling in the details to agencies. As recently stated by Judge Carlos T. Bea of the U.S. Court of Appeals for the Ninth Circuit, “The basic rule of Chevron deference is that if a statute is ambiguous, the federal agency charged with implementing the statute can issue regulations interpreting it to mean whatever the agency wants within the bounds of that ambiguity.”[14]

A lawsuit has now been filed challenging the FAA drone-owners’ registry, alleging that the rule violates the text and congressional intent of Section 336 of the FAA Modernization and Reform Act of 2012. The plaintiff, John Taylor, claims the registry “creates a burden on hobbyists that Congress did not want to create,” as evidenced by the language of Section 336, which states that “the agency may not create new rules if such model aircraft are ‘flown strictly for hobby or recreational use.’”[15] The nonprofit group TechFreedom has also filed a lawsuit challenging the registry on similar grounds.[16] If either of these lawsuits succeeds, the courts could overturn the drone registration process; if they do not, that task will most likely be left to Congress.

Power to Create the Drone Registry Not Delegated by Congress

Only Congress can enact a federal criminal law.[17] In 1911, however, the Supreme Court held in United States v. Grimaud that Congress could delegate legislative authority to federal agencies to issue regulations and could also enact legislation making it a crime to violate those regulations.[18] More recently, in United States v. O’Hagan,[19] the Court did not object to Congress “authorizing the Securities and Exchange Commission to make rules combating securities fraud and to make violations of these rules crimes.”[20]

But here it seems clear that the FAA was not empowered either to criminalize the failure to register a recreational drone or to require its registration in the first place. While agencies get deference under Chevron to interpret vague and ambiguous statutes, the statute in this instance is not ambiguous, so Chevron should not apply.

In 2014, the Supreme Court declined to hear a criminal appeal in Whitman v. United States. While they agreed with the Court’s decision not to hear the case, the late Justice Antonin Scalia, joined by Justice Clarence Thomas, clarified that “[u]ndoubtedly Congress may make it a crime to violate a regulation, but it is quite a different matter for Congress to give agencies—let alone for us to presume that Congress gave agencies—power to resolve ambiguities in criminal legislation.”[21] While Grimaud and later cases like O’Hagan affirm agencies’ ability to write regulations that implement statutory objectives even where Congress attaches a criminal penalty by statute, “agencies cannot overlook[] the reality that, if Congress wants to assign the executive branch discretion to define criminal conduct, it must speak ‘distinctly.’”[22] In the context of the FAA drone registry, Congress did not so speak.

In the case of the FAA registry, Congress did provide a penalty and defined when it should apply: 49 U.S.C. § 46306(b)(5) provides that the owner of an aircraft “not used to provide air transportation” and “eligible for registration” who “knowingly and willfully operates, attempts to operate, or allows another person to operate the aircraft” is subject to imprisonment for three years and fines up to $250,000.[23] Congress also provided, however, in Section 336 that “the agency may not create new rules if such model aircraft are ‘flown strictly for hobby or recreational use.’” Moreover, Congress has given the FAA the authority to register only aircraft, not aircraft owners, which is how the FAA has set up its drone-owners’ registry to function.[24]

In addition to the fact that the FAA acted unlawfully here, the FAA drone registry merits reconsideration because it needlessly and hastily resorted to criminal penalties when civil fines would have sufficed to satisfy the government’s interests.[25]

A Misuse of Criminal Law

By contrast to the over 300,000 regulatory crimes that exist today, there were only nine felonies at common law, including treason, murder, robbery, and arson.[26] If the FAA’s registration requirement seems out of place when compared with those crimes, it is because criminal laws and regulations are meant to serve different purposes. Criminal laws “enforce the minimum substantive content of the social compact”—“the moral code that every person knows by heart”—“by bringing the full moral authority of government to bear on violators.”[27] Regulations “efficiently manage components of the national economy using civil rules, rewards, and penalties to incentivize desirable behavior without casting aspersions on violations attributable to ignorance or explanations other than defiance.”[28]

Treating such relatively trivial conduct as failing to register a child’s toy the same way we treat “murder, robbery, or theft ‘ignores the profound difference between the two classes of offenses and puts parties engaged in entirely legitimate activities without any intent to break the law at risk of criminal punishment.’”[29] This problem is only compounded by the fact that by the FAA’s own estimates, there may be as many as a million registry-eligible drone owners, and this population grows daily.

Yet the FAA cannot guarantee that all—or even most—of this group is aware of the registration requirement or that they face draconian criminal penalties for failing to comply. Since most people do not think to check with a federal agency before using their latest toy or gadget, this leaves a significant and growing segment of the population needlessly exposed to criminal liability. The explosive growth of federal criminal law and the dramatic expansion of the administrative state have gone hand-in-hand.[30] Regulations like the FAA drone registration requirement generally make it all but impossible for individuals to know which of their toys—or any other things considered potentially “dangerous”—are permissible today but will make them felons tomorrow.

Criminalizing Innovation

The significance of the FAA’s registry extends beyond its immediate impact on drone owners: It sets a precedent for criminalizing other innovations utilizing “emergency” rulemaking procedures premised on overblown claims of harm. While this is a particularly egregious abuse of the criminal law, government has a history of criminalizing or threatening to criminalize innovation under the “precautionary principle,” the belief that “because a new idea or technology could pose some theoretical danger or risk in the future, public policies should control or limit the development of such innovations until their creators can prove that they won’t cause any harms.”[31]

Innovations affected by precautionary government action include commercial use of the Internet (until 1989);[32] an “at-home 99 genetic analysis kit”;[33] 3-D printing;[34] Caller ID;[35] Uber and Lyft, transportation services offered as an alternative to traditional taxi cabs;[36] Airbnb and other short-term home rental companies offering alternative vacation rentals;[37] driverless cars;[38] and FWD (“Skype before Skype was Skype”),[39] which eventually shut down in part because U.S. attorneys “put the reigns on FWD to seek FCC approvals” while “foreign founders of Skype proceeded apace with no regard for U.S. regulatory approvals.”[40]

Criminalizing or otherwise restraining technologies like e-mail sounds laughable today, but e-mails were new and strange once, and like the driverless and Internet-connected cars just beginning to emerge in the market today, people felt that “the more we learn about [them]…the more we’re learning to fear them.”[41] Telephones, too, were new and strange once, but “people quickly adjusted to the new device. ‘Ultimately, the telephone proved too useful to abandon for the sake of social discomfort.’”[42] When the telephone morphed into the cellular phone, the public once again became alarmed over the possibility of cell phone radiation causing cancer. That fear eventually proved to be unfounded, but imagine the consequences and the cost, both social and economic, if the government had banned cell phones until that risk was definitively disproven.

This thinking is antithetical to the core premise of a bottom-up, market-based economy and threatens technological progress, entrepreneurship, and prosperity. Precautionary rulemaking also (ironically for a theory premised on protecting society from unknown harms) leaves society exposed to “existing hazards” that new technologies might otherwise remedy. Drones, for example, might be useful tools in fighting wildfires and providing environmental disaster relief, or detecting threats to community safety, or performing tasks that would otherwise place a human being in danger. Public policies that, based on unproven potential risks, prevent or slow the development of those capabilities force society to forego the opportunity to benefit from social adaptation and repeated trial and error.[43]

Legislators and policymakers are standing by to capitalize on irrational fears or discomforts by introducing new legislation and regulations and claiming that such measures are necessary to protect the public from dangerous unknown technologies when, in fact, those fears are overblown.[44] Often, these claims are hyped to distract from other motives, whether it be protecting an entrenched and politically connected interest, enhancing one’s notoriety, or establishing regulatory purview over an expansive new sector. The public would be better served by policies that allow innovative technologies to be brought to market and that let the market and society sort out the winners and losers.


Drones are one of many emerging technologies that can legitimately be both celebrated and feared. The question becomes: How will government respond to new technologies, and can prosecutors and judges continue to do their jobs without new criminal penalties? Permitting a dynamic, bottom-up approach—where markets and social norms govern individuals’ interactions with new technologies—would be a more efficient regulatory response than a rigid, top-down, criminal law approach that threatens to deprive society of the benefits of innovation.

—Jason Snead is a Policy Analyst and John-Michael Seibler is a Visiting Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. This is the second of five Issue Briefs on how the FAA’s drone registry represents the stifling criminalization of innovation.


EPA Criminal Enforcement Policies

Originally published at Washington Legal Foundation by Barry M. Hartman | November 20, 2015

The WLF Timeline notes that in 2005, the Environmental Protection Agency (EPA) started co-locating its civil and criminal offices; it turns out this was just the tip of the iceberg.  There has been a long pattern of convergence of criminal and civil environmental enforcement at EPA, jointly with the Department of Justice’s (DOJ) Environmental Division.  When the difference between a criminal and regulatory offense—the “knowledge” or “scienter” requirement—was clear, a company knew what the stakes were if it was being investigated civilly.  But over the last 25 years, the continuing relaxation of the “scienter” requirement in the environmental arena has blurred that distinction, so that the only articulation an EPA or DOJ lawyer will typically give to that standard is, “I know it when I see it,” allowing the government to use criminal sanctions where administrative or civil penalties would be more appropriate.

More recently, the EPA (and DOJ) has been using administrative and civil processes as tools to develop criminal cases. Both EPA and DOJ are affirmatively encouraging their enforcement lawyers not just to share information, but to use administrative and civil enforcement processes to find evidence that can be used in criminal enforcement prosecutions. This is quite a departure from the historical practice of having two discrete enforcement efforts with different targets, purposes, and goals.

EPA revised its parallel-proceedings policy in 2007 to ensure this coordination between civil and criminal investigations, saying:

This Policy reaffirms and clarifies the earlier policies, while adding procedural mechanisms to enhance effective communications between the Agency’s civil and criminal enforcement programs.

The DOJ Environment Division did the same in 2008:

[A]ny information obtained as the result of legitimate civil and administrative discovery may be freely shared with criminal enforcement attorneys (emphasis added).

EPA has recently used its power to request information administratively under § 114(a) of the Clean Air Act, where DOJ lawyers were “assisting” in the effort, even though no case had been referred to DOJ. In recent cases involving prosecutions for the deaths of migratory birds, the Fish and Wildlife Service has followed the same tactic, using civil and administrative mechanisms to develop criminal cases. The Gulf spill may be the best evidence of this: administrative, civil, and criminal investigators worked hand in hand, and the civil and criminal cases were almost indistinguishable.

The implications for businesses and their employees are profound: how can a company cooperate in even the most routine administrative or civil inquiry when the specter of criminal liability is not just present, but affirmatively being considered and encouraged?  There are far more protections afforded to someone in the criminal context than in a civil or administrative investigation. Most significant among them is that EPA’s administrative investigative powers are broad and often insulated from at least some judicial oversight, yet are used to gather evidence for a criminal case. At least in a criminal case, if an unreasonable grand-jury subpoena is issued, a challenge is possible.

The convergence of parallel proceedings creates a veritable “third rail” in which the liberties of businesses and their employees are threatened.  Among all the developments noted on WLF’s Timeline, this convergence will likely have the most influence in shaping environmental enforcement and its impact into the future.

*Mr. Hartman is a Partner with K&L Gates LLP. He was formerly Acting Assistant Attorney General of the U.S. Department of Justice’s Environment and Natural Resources Division and Senior Vice President and General Counsel of Horsehead Industries, Inc.


Wellcare Case Provides Example of Overcriminalization in Action

Originally published at Cato Institute by Adam Bates | November 19, 2015

Case: Wellcare/Farha v. US

Overcriminalization is not a myth. Labyrinthine regulations often produce absurd outcomes, including prison sentences for individuals who do everything in their power, including consulting multiple attorneys, to comply with the law before acting.

recent op-ed in The Washington Times illustrates the point, using a recent Medicaid fraud case that is currently in front of a federal appeals court:

Here’s a quiz: Which of the following is a federal crime: (a) A hamster dealer needlessly tilting a hamster’s cage while in transit; (b) subliminally advertising wine; or (c) selling a fresh steak with paprika on it?

Give up? The answer: all of the above.

Right now, there are approximately 4,500 federal criminal statutes and 300,000 administrative regulations that can be punished with imprisonment — and the list keeps growing. This is an invitation for our government to over-prosecute. Too often, federal prosecutors are accepting that invitation and rejecting more measured and effective administrative and civil remedies.


In a case that was recently argued before a federal appeals court, executives at WellCare, a managed health care company in Florida, were prosecuted based on their reasonable interpretation of a Florida statute. Federal prosecutors, however, disagreed with the company’s interpretation, even though Florida never issued any regulations contradicting the executives’ reading of the law.

The legal framework WellCare operated in was complex. In a nutshell, Florida’s Medicaid program required managed care companies to report expenses they paid for providing behavioral health care — like mental health services. If the company did not spend at least 80 percent of the premiums they received, they had to return some of the premium dollars to the state. The executives at WellCare read Florida’s requirements as allowing them to classify as expenses the money that WellCare paid to its subsidiary that actually provided all the services.

Florida never clarified the law to say whether this was allowed or not, so WellCare did what businesses do — it consulted a lawyer. And WellCare’s lawyers — both in-house and independent outside counsel — said that the way they were reading the law was reasonable. Other companies providing these services under Florida’s Medicaid program read the law in a similar way. Admittedly, WellCare’s interpretation made the company more money, but, of course, making money is what a corporation ought to do.

Federal prosecutors disagreed and brought criminal charges against its executives. The prosecutors argued that WellCare lied when it sent in expense forms reflecting its reading of the law. At trial, even the government’s witnesses agreed that WellCare’s interpretation of the law made sense. And because this complicated question of how to read a technical Florida health care law was improperly left to the jury instead of the judge, the executives were convicted after a month of stalled deliberations. The company’s reasonable interpretation of a complex law — which was vetted by lawyers — was no sanctuary from a conviction for the company’s executives.

The executives were sentenced to prison up to three years. Yet another company that used the same accounting method was only sued for breach of contract and didn’t even have to pay back any money to Florida.

A federal appeals court has a chance to correct this and uphold a firmly established principle of criminal law: Where a citizen reasonably interprets complex regulatory law, a judge — not a jury — should throw out the case.

Whether prosecutors accuse you of violating Honduran lobster-packing laws even when the Honduran courts insist you didn’t, or prosecute you for assuming that a gun license from one state would be valid in a neighboring state, far too many non-dangerous people end up in prison simply because their reasonable interpretation of the law differs with that of the government.


Mens Rea and Corporate Officer Doctrine

Originally published at Washington Legal Foundation by Matthew G. Kaiser | November 16, 2015

To commit a crime, normally you have to have met two requirements. First, you have to have done something bad. Second, you have to have done the bad thing with a bad intent.

Take mortgage fraud. If you write on your mortgage application that you earn $1,000,000 a year, but you only earn $100,000, you’ve committed mortgage fraud if that’s what you intended to submit and you knew it was false. If, though, you’re using an online application and the “0” key on your keyboard was stuck so an extra zero appeared, you haven’t committed mortgage fraud, you’ve just made a mistake; you have no bad intent.

Accidents happen in lots of ways, which is why something a person does by accident is generally not supposed to be a crime. But that commonsense intuition has been undermined as the mens rea requirement—the requirement that a guilty mind exist before some course of conduct can be a crime—is weakened.

As a result, it’s now easier than ever to become an accidental criminal.

Each branch of government has contributed to this problem in its own way. Congress, in it’s frequent quest to seem ever more tough on crime, has passed more and more statutes that create federal crimes that have no explicit mens rea requirement or do not require a guilty mind at all. The National Association of Criminal Defense Lawyers and the Heritage Foundation did a studyof the legislative activity of the 109th Congress. Considering only proposals that did not involve violence, drugs, guns, pornography, or immigration, they found that 446 new federal crimes were proposed. Of these, 57% did not have an adequate mens rea requirement. And, lest you think these were among the many proposals Congress leaves on the cutting room floor each session, 23 of them ultimately became law.

As the Washington Legal Foundation’s Timeline vividly lays out, the judicial branch has played a role too, slowly eroding the requirement for a guilty mind. The U.S. Court of Appeals for the Ninth Circuit, in United States v. Weitzenhoff, for example, held that a prosecution for a Clean Water Act criminal provision doesn’t require knowledge that what was happening violated an environmental regulation. The U.S. Supreme Court, in United States v. Park, created criminal liability for a corporate officer who is responsible for conduct of any company employee about which she was unaware, but which was later determined to be criminal. The courts have had an opportunity to reign in the Department of Justice and Congress by affirming the requirement of a guilty mind’s place in our criminal statutes as a matter of due process. They’ve largely gone the opposite direction.

The Department of Justice has taken advantage of the opportunity to prosecute with a lower standard of intent. In response to public concern about corporate conduct, they have prosecuted executives and others for conduct that was not the fruit of an evil mind.

The Quality Egg case referenced on the Timeline is an excellent example of the problem of how the lack of mens rea can land unsuspecting people in prison.

Two men ran Quality Egg. That company produced, as its name suggests, eggs. Some of those eggs were contaminated with salmonella, though no one at the company knew it. It’s a crime to put a contaminated egg into interstate commerce, regardless of whether you know the egg is contaminated—that’s a strict liability crime.

So, someone at Quality Egg—the person who actually put the bad eggs into interstate commerce—committed a crime, even though he didn’t know what he was doing was criminal. But the men who ran the company, the DeCosters, were the ones who ultimately were convicted of that crime. Even though they didn’t put the eggs into the stream of commerce, they were in charge of the company. So they were responsible corporate officers under Park.

What made the case truly surprising was that the Department of Justice sought—and the judge imposed—prison time. The DeCosters were sentenced to three months in prison for a crime where they didn’t do anything criminal (they didn’t put the bad eggs into commerce) and where they didn’t intend to violate any law. Instead, they were sentenced to prison merely because of the position they held in a company.

Three months is, to be sure, not the most outrageously long sentence handed down by a federal judge. But it’s also three months longer than anyone wants to spend in prison. Especially when the person didn’t do anything wrong in the first place.

Quality Egg shows why mens rea reform is desperately needed. Executives shouldn’t fear prison simply due to their status as executives.


United States v. Quality Egg

Originally published at Cato Institute by Ilya Shapiro and Randal John Meyer | July 30, 2015

Case: US v DeCoster

It isn’t every day that a person can go to his or her job, work, not participate in any criminal activity, and still get a prison sentence. At least, that used to be the case: the overcriminalization of regulatory violations has unfortunately led to the circumstance that corporate managers now face criminal—not just civil—liability for their business operations’ administrative offenses.

Take Austin and Peter DeCoster, who own and run an Iowa egg-producing company called Quality Egg. The DeCosters plead guilty to violating certain provisions of the Food, Drug, and Cosmetic Act because some of the eggs that left their facilities contained salmonella enteritidis, a bacterium harmful to humans. They were sentenced to 90 days in jail and fined $100,000 for the actions of subordinates, who apparently failed, also unknowingly, in their quality-control duties.

In other words, the “crime” that the DeCosters were convicted of didn’t require them to have put eggs with salmonella into interstate commerce, or even to have known (or reasonably been able to foresee) that Quality Egg was putting such eggs into interstate commerce. It didn’t even require the quality-control operator(s) most directly involved in putting the contaminated eggs into interstate commerce to have known that they were contaminated.

Nearly a century of jurisprudence has held that imprisoning corporate officers for the actions of subordinates is constitutionally suspect, given that there’s neither mens rea (a guilty mind) nor even a guilty act—the traditional benchmarks of criminality since the days of Blackstone. Yet there are about 300,000 regulations that can trigger criminal sanctions. These rules are too often ambiguous or arcane, and many lack any requirement of direct participation or knowledge, imposing strict liability on supervisors for the actions (or inactions) of their subordinates.

In United States v. Quality Egg, the district court ruled that courts have previously held that “short jail sentence[s]” for strict-liability crimes are the sort of “relatively small” penalties that don’t violate constitutional due process.  Such a sentence has only been imposed once in the history of American jurisprudence, however, and for a much shorter time on defendants with much more direct management of the underlying bad acts. Additionally, prison is not the sort of “relatively small” penalty—like a fine or probation—that the Supreme Court has allowed for offenses that lack a guilty mind requirement.

Joining the National Association of Manufacturers, Cato points out in an amicus brief supporting the DeCosters’ appeal that this case presents an opportunity for the U.S. Court of Appeals for the Eighth Circuit to join its sister court, the Eleventh Circuit, in holding that prison sentences constitute a due-process violation when applied to corporate officers being charged under a strict-liability regulatory regime.


Too Many Laws Means Too Many Criminals

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

Yates v. US

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

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

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

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

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

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

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

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

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

That “deeper pathology” is overcriminalization.

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

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

Fiction has become reality.

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

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

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

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

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

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

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

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

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

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


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: The Perils of Overcriminalization

Originally published at The Heritage Foundation by Paul Larkin Jr. and Michael Mukasey | February 12, 2015

What has happened to federal criminal law in recent decades? Several former senior Department of Justice officials have expressed their concern with the path we have taken,[1] along with the American Bar Association,[2] numerous members of the academy,[3] journalists,[4] and other organizations like The Heritage Foundation.[5] We agree with their considered opinion that overcriminalization is a serious problem and needs to be remedied before it further worsens the plight of the people tripped up by it and further injures the public interest.

To begin with, the sheer number of federal laws that impose criminal penalties has grown to an unmanageable point. The Department of Justice and American Bar Association have been unable to tally the correct number.[6]

Proliferation of Federal Crimes

The Congressional Research Service reportedly has been unable to come up with a definitive total of federal criminal laws; the nearest they could come was to say they number in the thousands.[7] They are by no means confined to the federal criminal code—Title 18, itself a weighty volume—but are scattered among the laws contained in the 51 titles or subject-matter volumes of the federal code and the hundreds of thousands of regulations that are supposed to implement those laws.[8] The result is that there are more criminal laws than anyone could know.

Indeed, federal crimes are not confined to offenses against the domestic laws of the United States. Under the Lacey Act, it is a crime to import into the United States animals or plants gathered in violation of the laws of the countries from whence they came.[9]

In a sense, you can understand such a law from the standpoint of a conservationist who wishes to guard against the extinction of species of animals or destruction of the world’s forests. But one result of that seemingly well-meaning legislative effort was a raid by federal agents on the premises of the Gibson Guitar Company for importing wood for guitar frets that was allegedly exported in violation of the laws of India and Madagascar (the latter, by the way, are not even written in English).[10] It is utterly unreasonable to require anyone to know the laws of every other nation in order to avoid criminal liability.

There have also been questionable prosecutions under domestic federal criminal laws. Consider the case of Lawrence Lewis. Mr. Lewis grew up in difficult circumstances but escaped the fate of two brothers, who died in prison. A blue-collar employee who worked his way up to the position of head engineer at a military retirement home, Lewis was charged with felonious pollution of a navigable waterway, a charge that summons the image of dumping toxic chemicals into a river.[11]

That image, however, has nothing to do with the facts. Mr. Lewis was simply using a facially reasonable procedure—one that he had been instructed to use and had used uneventfully for years—to clean up occasional toilet overflows in the hospice area of the home (caused by adult diapers clogging the pipes) by spraying water from a hose to direct the waste into a sewer that led to a small creek that he believed went to the District of Columbia’s publicly owned treatment works but that, unbeknownst to him, emptied into Rock Creek and ultimately into the Potomac River. The federal government charged him with a felony for making a reasonable mistake.

Even setting aside the fact that what goes on alongside the Potomac in Washington makes the occasional runoff from a toilet at a military retirement home seem hygienic by comparison, how could this happen? The Lewis case is an example of the result of a process that started out with good intentions but has taken us far down the road that the old proverb tells us is paved with good intentions.

Before the 20th century, to the extent that there were federal criminal laws, they concerned acts that everyone knew and understood were morally wrong.[12] Accordingly, the old saw that ignorance of the law is no excuse was one that could be uttered seriously and without evoking a sarcastic snicker.

At the beginning of the 20th century, laws were adopted that had the effect of protecting the purity of food, the safety of workers, and other goals included in the rubric of health and safety.[13] Violations of some of those laws were made criminal, and some permitted conviction without a finding of criminal intent: That is, all that had to be proved was that the defendant had done the act. Courts allowed that but said it was permissible only in the kinds of cases that involved protecting the health and safety of the community. The courts’ rationale for permitting this departure from usual standards was that the stakes—public health and safety—were so high that protecting public welfare was paramount.[14]

Many may well have reasoned that people whose conduct affected health and safety should be bound to pay particular attention and that if they let their intention flag, it was not unreasonable to hold them to a strict standard of something less than criminal intent. In the process, however, the whole notion of consciousness of wrongdoing in the criminal law was obscured, although the penalties of loss of freedom or property, and moral taint, remained.[15]

Achieving Institutional Reform Through Prosecution

In addition to the passage of statutes and regulations, another phenomenon that started in the setting of civil litigation but has since spilled over into the criminal law is the practice of bringing prosecutions to achieve institutional reform rather than seeking legislation that would have that end. Litigators in what are referred to loosely as civil rights or civil liberties issues have long known that they could often achieve their goals more quickly and with greater certainty through litigation than through legislation. One obvious example was a Connecticut statute that banned the sale of contraceptives. The state had not enforced the statute for years,[16] but a plaintiff eventually persuaded the Supreme Court that the law violated a constitutional right to privacy.[17]

That practice has now spread to criminal cases. Take, for example, prosecutions for promoting drugs for uses other than those for which the Food and Drug Administration has approved them, even though the targets of the promotion are not laymen but physicians who exercise independent judgment about whether to prescribe a drug or not. The prescribing of a drug for a purpose other than the one for which it was approved is not an offense at all; indeed, physicians may help to make medical progress while curing their patients if they are able to see new uses for pharmaceuticals. Yet promoting drugs for what is called off-label use is a felony.

Peter Gleason, a Maryland psychiatrist who regularly served poor and underserved constituencies, delivered a series of paid lectures at medical conventions describing success he had had with off-label use of certain drugs, and he was prosecuted for doing so. He did not have the resources to fight, so he pleaded guilty to a misdemeanor and paid a small fine. Nonetheless, the guilty plea ruined his medical practice. The Department of Health and Human Services told Dr. Gleason that his conviction excluded him from all medical programs, and virtually all of his patients were on Medicare or Medicaid.[18]

Another defendant in the same case went to trial and prevailed when the U.S. Court of Appeals for the Second Circuit held that the First Amendment protects the right to communicate truthful information about the benefits of pharmaceuticals, even off-label benefits.[19] Dr. Gleason, however, did not benefit from that ruling because his desperation over loss of his practice led to his suicide before the Second Circuit decided the case. The Gleason case is proof that good intentions can go haywire.

Nonprosecution and Deferred Prosecution Agreements

Another factor contributing to the proliferation of criminal regulations has been the advent of nonprosecution and deferred prosecution agreements with corporate defendants. The Department of Justice often uses settlements known as nonprosecution or deferred prosecution agreements to resolve criminal cases. It may seem paradoxical that agreements whereby corporations escape actual prosecution themselves contribute to the efflorescence of criminal laws and proceedings, but the process itself has pernicious results.

Consider the corporation investigated for a possible violation of criminal law. For most corporations, particularly those that are publicly traded, otherwise have a public profile, or do business in a highly regulated industry, a conviction can be crippling,[20] but an indictment alone can also have catastrophic results.[21] As a result, many large corporations negotiate deferred prosecution or nonprosecution agreements that permit them to escape the filing of a criminal charge in return for payment of a sizable penalty as a settlement.

The size of these settlements has made both state and federal governments begin to look upon prosecutors’ offices, where the interests of justice are supposed to govern, as profit centers. In some jurisdictions, proceeds of those penalties are used in whole or in part by law enforcement agencies to conduct activities or purchase equipment. In virtually all jurisdictions, including the federal government, the dollar value of penalties extracted from corporations is featured by law enforcement agencies and departments as a principal measure of their effectiveness and worth.

Moreover, as pointed out by Matthew Fishbein in the New York Law Journal, the very size of many of these settlements has raised the expectation of lay observers that individual defendants will be prosecuted as well; those expectations are then disappointed when no such prosecutions follow.[22] The reason is that corporate settlements do not challenge the government’s legal theories or its evidence, but the government is wary of bringing charges against individual defendants because people who stand to lose their freedom often go to trial and prevail when the government’s case is tested in court.

The Department of Justice often goes beyond even the extraction of large settlements and has insisted on changes in corporate governance through the imposition of standards or monitors and even changes in corporate personnel as the price of avoiding criminal charges.[23] The Department of Justice makes that demand even though those remedies would not be available as part of a sentence after conviction.[24] To that extent, the running of corporations is taken out of the hands of shareholders and directors and placed instead in the hands of prosecutors.

Proposals for Reform

If these unhappy results of the proliferation of criminal laws and prosecutions are to change, the changes will not come from courts, which have upheld criminal penalties even without a showing of intent against claims of denial of due process.[25] Obviously, prosecutors have no incentive to make changes in a system that rewards their excesses. The changes will have to come from Congress, which itself has been the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success.[26]

There have been many proposals for reform, some with merit.

  • One is for a statute requiring proof of guilty knowledge in any criminal prosecution unless Congress has legislated specifically to the contrary.
  • Another is that administrative agencies be required to list and make generally available in full text all regulations that carry potential criminal penalties, and perhaps that Congress then be required to ratify any such regulation before it can provide the basis for a criminal prosecution.
  • Finally, Congress should adopt a general, across-the-board defense of mistake of law, requiring that a defendant be acquitted if he can prove by a preponderance of evidence that he believed reasonably that what he did was not a crime.[27]

If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.—Michael B. Mukasey, Partner, Debevoise & Plimpton, served as 81st Attorney General of the United States from 2007–2009 and as a judge on the U.S. District Court for the Southern District of New York from 1988–2006. Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.


Too Many Laws, Too Many Costs

Originally published by Cato Institute by David Boaz | February 2, 2015

As 2014 drew to a close, the mainstream media were full of laments about the “least productive Congress.” Or more precisely that the just‐​concluded 113th Congress was the secondleast productive Congress ever (since the mid‐​1940s when these tallies began), second only to the 2011-12 112th Congress. But what’s the definition of a “productive Congress”? One that passes laws, of course, lots of laws. Congress passed only 297 laws in the past two years, exceeded in slackerdom only by the 284 laws passed in the previous two years of divided government.

All this productivity analysis assumes that passing laws is good, and passing more laws is better. But as the year ended, we also saw plenty of indications that many, perhaps most, laws — that is, most mandates, bans, regulations, taxes, subsidies, boondoggles, and transfer programs — do more harm than good.

Two articles in the Washington Post on December 6 reminded me that too many laws impede enterprise, charity, innovation, and growth.

Brian Levy is vice president of a company that works to develop and fund energy efficiency and renewableenergy projects. Inspired by the “micro‐​houses” movement, he decided to build his own tiny house in the expensive District of Columbia. For $77,000 he built a house that’s 11 feet wide and 22 feet long, with 210 square feet of living space. It has a galley kitchen and a full‐​size bed, the Post reports — although he can’t sleep overnight there because of a provision in District law.” A 210‐​squarefoot house wouldn’t be my cup of tea. But it’s his house, and it won an Award of Merit from the American Institute of Architects. Why can’t he live there? Because, the Post reports, “the alley next to his lot is not 30 feet wide and does not connect to a public street.” So much for encouraging innovation and the green economy.

Another story the same day reported that the Charles Darwin Research Station on the Galapagos Islands, off the coast of Ecuador, supports itself by operating a small store — “selling mostly clothing with the Charles Darwin Foundation’s logo. But then it added swimsuits, sunglasses, Ecuadoran chocolate and artwork, and the local traders cried foul. A local mayor agreed and shut down the store.” The Research Station is also hampered by a U.S. tax provision that prevents the Galapagos Conservancy from fully funding it. So U.S. tax law and local cronyism may combine to shut down “the oldest and most prominent research organization in the famed archipelago that inspired Darwin’s masterwork, On the Origin of Species.”

Far worse than those unfortunate outcomes was the fate of Eric Garner, who died in a police chokehold after he resisted the attempt to arrest him for selling individual cigarettes — “loosies” — on the street. Why do people sell cigarettes on the street? Because New York has the country’s highest cigarette taxes, and cigarettes smuggled in from low‐​tax states such as Virginia can be sold much more cheaply. Garner had been arrested more than 30 times, most often for selling cigarettes on the street. Yale law professor Stephen Carter wrote in the days after Garner’s death:

It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.

In his book Overcriminalization: The Limits of the Criminal Law, Douglas Husak of Rutgers points out that federal law now includes more than 3,000 crimes, and there may be 300,000 or more federal regulations enforceable through criminal punishment at the discretion of an administrative agency. Which is why criminal defense attorney and Cato adjunct scholar Harvey Silverglate titled his book Three Felonies a Day.

As I wrote at USATo​day​.com, “the more laws we pass, the more chances there are for people to run afoul of the police. Especially when we outlaw peaceful activities, such as smoking marijuana, selling untaxed cigarettes or feeding the homeless.”

If Congress wants to be really productive, it should repeal laws. It could start by reviewing the laws that create 3,000 federal crimes. And federal, state, and local governments should consider whether it’s really a good idea to use armed agents to enforce laws and regulations about selling orchids or raw milk, letting your child play in the park, or writing a school story about killing a dinosaur with a gun.


The Overcriminalization of America

Originally published at Politico by Charles G. Koch & Mark Holden | January 7, 2015

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens. 

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

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

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

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

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

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

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

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

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

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

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

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

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


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).


Heritage Report: A Judicial Cure for the Disease of Overcriminalization

Originally published at The Heritage Foundation by Stephen F. Smith  | 8/21/14

A‌s issues of public policy go, few are as strange as overcriminal‌ization. Once largely the subject only of academic complaint, the problems associated with overcriminalization are now more widely understood. Major think tanks,[1] media outlets,[2] civil libertarian groups,[3] and legal professional associations[4] have shined a harsh light on the injustices that federal prosecutors have committed against people who had no reason to know their actions were wrongful, much less illegal.

These are not isolated cases of abusive prosecution; they take place from coast to coast and have ruined the lives and reputations of people who were like other law-abiding citizens except for their misfortune of having attracted the attention of an overzealous federal agent or prosecutor.[5] From left and right of political center to points in between, there is an impressive consensus that overcriminalization gravely threatens the liberty of ordinary citizens.

Nevertheless, reports of overcriminalization’s demise would be greatly exaggerated. Congress has repeatedly held hearings on the subject, and members of both parties have criticized the present state of affairs in which the law virtually “makes everyone a felon.”[6] Yet Congress has taken no action.

Even that bleak statement is too optimistic: Congress, while at times professing concern over the federalization of crime,[7] has continued to pass new federal criminal laws at a relentless pace. Congress has created an average of 56 new crimes every year since 2000, roughly the same rate of criminalization from the two prior decades.[8] This is no aberration. As Professor John Baker has noted, “for the past 25 years, a period over which the growth of the federal criminal law has come under increasing scrutiny, Congress has been creating over 500 new crimes per decade.”[9]

Much like the addict who repeatedly breaks promises to quit, Congress cannot seem to kick the overcriminalization habit. Some addicts eventually seek help through third-party “interventions,” but the federal courts, committed as they are to expansive views of congressional power to define crimes,[10] will not nudge Congress even to curb its reliance on overcriminalization, much less to quit cold turkey.

At this point, traditional critiques of overcriminalization hit a brick wall because overcriminalization is understood primarily in quantitative terms: the notion that there are too many criminal laws regulating too many activities. From this view, reform efforts depend entirely on Congress, which needs to narrow and repeal scores of federal criminal laws. Absent such legislative action, federal prosecutors will continue to have free rein to exploit the vagaries of federal law to charge and convict whomever they wish, regardless of how innocuous the accused’s behavior is.

Fortunately, there is another path to reform in this area, one that does not depend on congressional action (or heroic self-restraint by federal prosecutors). This path to reform is informed statutory interpretation in federal criminal cases. Legislative overuse and prosecutorial misuse of the criminal sanction need not go unchecked, as many judges seem to think. The courts themselves have an important role in defining crimes, a role that takes on even greater importance as Congress continues to default on its obligation to restrict criminal liability and penalties to sensible bounds.

Courts flesh out—and, more often than not, prescribein the first instance—the state of mind required for conviction. The state-of-mind, or mens rea, requirements are of vital importance in preventing morally undeserved punishment and guaranteeing the fair warning necessary to enable law-abiding citizens to avoid committing crimes. As important as the role of defining the mental element of criminal liability is, however, it is not the judiciary’s only role in this area. The courts also help to define criminal liability by interpreting ambiguous statutes, determining the meaning of laws in which Congress failed to make its intention entirely clear.

Once the important role of the federal judiciary in defining criminal liability is understood, there is greater cause for optimism about the prospect of finally reining in overcriminalization. The effort to persuade Congress to reverse course and exercise greater restraint and care in the use of criminal sanction is important and should continue. It is time, however, to broaden the conversation to include the one branch of the federal government—the judiciary—that is most likely to be receptive to long-standing complaints about overcriminalization. As we continue to await legislative reform, it is high time for courts to be part of the solution to overcriminalization instead of part of the problem.

The rest of this paper proceeds as follows. The first section seeks to reframe the typical discussion of overcriminalization in terms of the deeper problems stemming from the expansive body of federal criminal law. These problems, which stem fundamentally from poor crime definition, are ones that the federal courts helped to create and thus can remedy on their own without action by Congress. Although comprehensive legislative reform is ultimately needed, the reform effort can and should take place in federal courtrooms as well as in the chambers of Congress.

The second and third sections discuss the ways in which courts have worsened—and, by changing interpretive strategies, can counter—the adverse effects of overcriminalization through statutory interpretation.It is not “restraint” for courts to expand ambiguous federal criminal statutes and to water down mens rea requirements. To the contrary, it is “activism” and an abdication of the judiciary’s historic responsibility to promote due process and equal justice for all.

To be faithful to its role as a coequal branch of government, the federal judiciary should not be rubber stamps for the Department of Justice’s predictably expansive uses of federal criminal statutes. The judiciary should instead counteract the personal, political, and other considerations that often sway prosecutorial decision making with informed, dispassionate judgment about the proper scope of federal criminal laws in light of statutory text, legislative intent, and enduring principles of criminal law. The sooner federal judges get the message, the sooner overcriminalization’s days will be numbered and the court system can resume the business of dispensing justice instead of merely punishment.

Overcriminalization Defined

As the term implies, critiques of overcriminalization posit that too many criminal laws are on the books today and, relatedly, that existing criminal prohibitions are too broad in scope. This standard view of overcriminalization is quantitative in that it bemoans the number of criminal laws on the books and the amount of activity that is deemed criminal.

Arguments that there is too much criminal law typically stress the fact that new criminal laws are continuously added to the books, even when crime rates are low or falling, and that the expansion often involves “regulatory” offenses. Such offenses punish conduct that is mala prohibita, or wrongful only because it is illegal, and may allow punishment where “consciousness of wrongdoing be totally wanting.”[11] With the continued proliferation of regulatory offenses, conduct that in prior generations might have resulted only in civil fines or tort liability (if that) is now subject to the stigma and punishment of criminal law.[12]

Although the quantitative view tends to dominate discussions of overcriminalization, it is unsatisfying on its own terms. While such frequent use of the criminal sanction, especially during election years and times when crime rates are low or falling, may suggest that Congress is legislating for reasons other than legitimate public-safety needs, new criminal legislation might be used, for example, to signal voters that its proponents are “tough” on crime.[13] Alternatively, steady expansion in the reach of federal crimes might signify that Congress does not see (or simply does not care much about) potential misuse of increasingly broad prosecutorial authority.[14]

Still, a broad, constantly expanding criminal code need not jeopardize individual liberty or mete out morally undeserved punishment. If the prohibitions and penalties are carefully tailored to appropriate offenses and offenders, a large, expanding code can operate as justly as a code that is smaller and more targeted in its reach. For this reason, the quantitative objection to overcriminalization is, without more, incomplete.

The quantitative objection implies a deeper, qualitative objection to overcriminalization in that overcriminalization tends to degrade the quality of the criminal code, producing unjust outcomes. For example, a code that is too large and grows too rapidly will often be poorly organized, structured, and conceived. The crimes may not be readily accessible or comprehensible to those who are subject to their commands. Moreover, a sprawling, rapidly growing criminal code likely contains inadequately defined crimes—crimes, for example, in which the conduct (actus reus) and state of mind (mens rea) elements are incompletely fleshed out, giving unintended and perhaps unwarranted sweep to those crimes.

The number and reach of criminal laws may be symptomatic of a broken criminal justice system, but the poor quality of the criminal code and the resulting mismatch between moral culpability and criminal liability are the disease.

Overcriminalization as a (Partially) Self-Inflicted Judicial Wound

Once overcriminalization’s qualitative aspects are understood, it becomes evident that the blame for overcriminalization cannot be laid entirely at Congress’s doorstep. Regrettably, the courts have played the overcriminalization game with Congress and the Department of Justice. They have done so by expansively interpreting ambiguous criminal statutes in derogation of the venerable “rule of lenity” and by not insisting on mens rea requirements robust enough to rule out morally undeserved punishment. Both of these interpretive failures have made federal criminal law even broader and more punitive.

Expansive Interpretations as Judicial Crime Creation. It is often said that courts do not “create” federal crimes, but that simply is not the case. When courts expand the reach of ambiguous criminal laws (laws which, by definition, can reasonably be read to include or exclude the defendant’s conduct), they are essentially creating crimes. They are determining for themselves, within the broad bounds of the terms of an ambiguous statute, whether the defendant’s conduct should be condemned as criminal, and they are doing so after the fact, without prior warning to the defendant charged with a violation. To allow citizens to be convicted and imprisoned based on such judicial determinations transforms federal criminal law into what one scholar has described as “a species of federal common law”[15]—a result fundamentally at odds with the principle that in a democracy, the criminalization decision is reserved for legislatures.[16]

The root of the problem is that the courts are notoriously inconsistent in adhering to the rule of lenity. The rule of lenity requires a court to construe ambiguous criminal laws narrowly, in favor of the defendant,[17] not to show lenience to lawbreakers, but to protect important societal interests against the many adverse consequences that the judicial expansion of crimes produces. These consequences include judicial usurpation of the legislative crime-definition function, not to mention potential frustration of legislative purpose and unfair surprise to persons convicted under vague statutes. The rule of lenity therefore reflects, as Judge Henry Friendly memorably said, a democratic society’s “instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.”[18]

More to the point, faithful adherence to the rule of lenity would require courts to counteract overcriminalization. The rule would require courts to narrow the scope of ambiguous criminal laws, adopting expansive interpretations onlyif compelled by the statutory text. This would prevent prosecutors from exploiting the ambiguities of poorly defined federal crimes either to criminalize conduct that Congress has not specifically declared to be a crime or to redefine—or ratchet up the penalty for—crimes dealt with more specifically in other statutes. The rule of lenity would thus make poor crime definition an obstacleto—not a licensefor—more expansive applications of federal criminal law, remitting prosecutors seeking more enforcement authority to the democratic process, not an unelected, unaccountable judiciary.

Regrettably, the federal courts treat the rule of lenity with suspicion and, at times, outright hostility. While sometimes faithfully applying the rule of lenity, the Supreme Court has frequently either ignored lenity or dismissed it as a principle that applies only when legislative history and other interpretive principles cannot give meaning to an ambiguous statute.[19] Indeed, the federal courts disregard the rule of lenity so frequently that it is questionable whether the rule of lenity can still be accurately described as a rule. As I have previously stated:

[T]he courts’ aversion to letting blameworthy conduct slip through the federal cracks has dramatically reversed the lenity presumption. The operative presumption in criminal cases today is that whenever the conduct in question is morally blameworthy, statutes should bebroadlyconstrued, in favor of the prosecution, unless the defendant’s interpretation is compelled by the statute…. The rule of lenity, in short, has been converted from a rule about the proper locus of lawmaking power in the area of crime into what can only be described as a “rule of severity.”[20]

The results of the judiciary’s haphazard adherence to the rule of lenity are as predictable as they are misguided. Federal judges have repeatedly used ambiguous statutes as a basis for creating new federal crimes.[21] They have also expanded the reach of overlapping federal crimes to drive up the punishment that Congress prescribed for comparatively minor federal crimes.[22] The end result of such assaults on the rule of lenity is necessarily a broader and more punitive federal criminal law—a worsening of overcriminalization rather than an improvement.

Inadequate Mens Rea Requirements. The courts have done better—but only slightly—in fleshing out the state-of-mind, or mens rea, requirements for federal criminal liability. As the Supreme Court explained in Morissette v. United States,[23] the concept of punishment based on acts alone without a culpable state of mind is “inconsistent with our philosophy of criminal law.” In our system, crime is understood as a “compound concept,” requiring both an “evil-doing hand” and an “evil-meaning mind.”[24]

The historic role of the mens rea requirement is to exempt from punishment those who are not “blameworthy in mind” and thereby to limit punishment to persons who disregarded notice that their conduct was wrong.[25] Mens rea also serves to achieve proportionality of punishment for blameworthy acts, ensuring that the punishment the law allows “fits” the crime committed by the accused. Mens rea, for example, guarantees that the harsher penalties for intentional homicides will not be applied to accidental homicides.[26]

Despite the critical importance of mens rea to the effectiveness and legitimacy of federal criminal law, federal crimes often lack sufficient mens rea elements. Many federal crimes, including serious crimes, contain no express mens rea requirements.[27] Perhaps more commonly, federal crimes include express mens rea requirements for some element of the crime but are silent as to the mens rea (if any) required for the other elements.[28] Here it is evident that Congress intended to require mens rea but unclear whether Congress intended the express mens rea requirement to exclude additional mens rea requirements. In still other situations, even when Congress includes mens rea terms in the definition of crimes, it uses terms such as “willfully” and “maliciously” that have no intrinsic meaning and whose meaning varies widely in different statutory contexts.[29]

This confusing state of affairs might be acceptable if the courts employed a consistent method of mens rea selection. However, the courts have been inconsistent in their approach to mens rea questions. On occasion, the Supreme Court stands ready to read mens rea requirements into statutes that are silent in whole or in part as to mens rea because the Court has an interest in making a morally culpable state of mind a prerequisite to punishment.[30] This, however, is not invariably so.

Sometimes, courts treat legislative silence concerning mens rea as a legislative signal to dispense with traditional mens rea requirements, especially with respect to regulatory crimes protecting the public health, safety, and welfare. Even Morissette v. United States, with its strong emphasis on the usual requirement that a culpable mental state is a prerequisite to punishment, conceded that the requirement may not apply to regulatory or other crimes not derived from the common law.[31] The Court seized on this statement in United States v. Freed[32] as justification for treating a felony punishable by 10 years in prison as a regulatory offense requiring no morally culpable mental state.

To be sure, more recent cases cast doubt on Morissette and Freed in this respect. Among these cases are Arthur Andersen LLP v. United States,[33] Ratzlaf v. United States,[34]and Staples v. United States.[35] In each case, the Supreme Court adopted heightened mens rea requirements, and Arthur Andersen and Ratzlaf went so far as to make ignorance of the law a defense.[36] Each time, the Court ratcheted up mens rea requirements for the stated purpose of preventing conviction for morally blameless conduct.

These cases, I believe, are best read as making a culpable mental state a prerequisite for punishment for all crimes, even regulatory offenses. As I have explained elsewhere:

[T]he Supreme Court has dramatically revitalized the mens rea requirement for federal crimes. The “guilty mind” requirement now aspires to exempt all “innocent” (or morally blameless) conduct from punishment and restrict criminal statutes to conduct that is “inevitably nefarious.” When a literal interpretation of a federal criminal statute could encompass “innocent” behavior, courts stand ready to impose heightened mens rea requirements designed to exempt all such behavior from punishment. The goal of current federal mens rea doctrine, in other words, is nothing short of protecting moral innocence against the stigma and penalties of criminal punishment.[37]

The fact remains, however, that Freed and cases like it have never been overturned. Unless that happens, confusion will persist, as will the possibility that a culpable mental state may not be required for some crimes, especially regulatory offenses involving health and safety concerns.

One thing, however, is certain: As long as courts fail to make proof of a culpable mental state an unyielding prerequisite to punishment, federal prosecutors will continue to water down mens rea requirements in ways that allow conviction in excess of blameworthiness. That is exactly what prosecutors did in Arthur Andersen during the wave of post-Enron hysteria over corporate fraud. In seeking to convict Enron’s accounting firm of the “corrupt persuasion” form of obstruction of justice, prosecutors—flatly disregarding the lesson of cases like Staples and Ratzlaf—argued for incredibly weak mens rea requirements that, as the Court noted, would have criminalized entirely innocuous conduct.[38]

Although the Supreme Court unanimously rejected the Justice Department’s efforts and overturned Arthur Andersen’s conviction, the firm has less cause to celebrate than one might think. After being convicted on a prosecution theory so aggressive that it could not win even a single vote from the Justices, the firm—once a Big Five accounting firm—went out of the consulting business. Even now that it no longer stands convicted of a crime, its reputation has likely been damaged beyond repair. Its own conduct in the Enron matter had a lot to do with that, of course, but so did the overzealousness of federal prosecutors in exploiting the serious imperfections in federal mens rea doctrine. The Arthur Andersen episode simultaneously shows the need for substantial mens rea reform and the high cost of not having strong mens rea requirements.

The Judicial Path to Overcriminalization Reform

Given that overcriminalization has qualitative components—for which courts themselves bear a large share of the blame—courts can be part of the solution instead of part of the problem. Even if Congress and federal prosecutors continue their unrestrained use of the criminal sanction, courts are not powerless to act.

The solution is for courts to interpret statutes in ways that rectify the qualitative defects that overcriminalization produces in a body of criminal law as sprawling and poorly defined as federal criminal law is. New interpretive strategies, tailored to the troubling realities of a criminal justice system characterized by rampant overcriminalization, can help to right this fundamental wrong in federal criminal law.[39]

Statutory construction, of course, has its limits and cannot be used to defeat the operation of statutes that plainly encompass the defendant’s conduct. In cases such as these, courts should apply the statutes as written, barring some constitutional infirmity, but even here courts can exercise informed discretion to counteract abusive exercises of prosecutorial discretion.

After United States v. Booker,[40] district judges have wide sentencing discretion, and they can and should use that discretion to show suitable lenience toward sympathetic defendants. The President can also use his power to grant pardons or commute sentences—as President Barack Obama recently did to free eight prisoners serving unduly long drug sentences in the wake of the Fair Sentencing Act of 2010[41]—to do justice toward defendants who were unfairly convicted or sentenced.[42] Although these important safeguards for the sound administration of criminal justice should not be overlooked, this paper focuses on how courts can interpret criminal statutes to counteract the effects of overcriminalization.

Restoring the Rule of Lenity to Its Rightful Place. In light of how often courts interpret criminal statutes expansively, it should be clear that they do not simply let the weights in the interpretive scales determine whether statutes are to be read broadly or narrowly, as academic critics of lenity would have them do.[43] Instead, the balance is heavily skewed in favor of the prosecution when the conduct in question is morally blameworthy, even when a broad interpretation allows prosecutors to drive up considerably the punishment that would otherwise apply or to evade limitations that the legislature included in the definition of the crime in more specific statutes.

Whether the law enforcement need for expanded authority is real,[44] minimal,[45] or just silly,[46] the one constant seems to be that courts will go to almost any lengths to keep blameworthy conduct from slipping through the federal cracks. Thus, it is closer to the truth to say that the operative interpretive rule in federal criminal cases is severity: that ambiguous statutes presumptively should be construed broadlyto prevent culpable defendants from slipping through the federal cracks.

In practice, then, rejecting the rule of lenity tends to look a lot like endorsing anti-lenity (or a rule of severity). That, in turn,affords a substantial justification for taking lenity seriously, even if, as a theoretical matter, an evenhanded approach to the interpretation of criminal statutes might be preferable to a strict-construction default. After all, even critics of lenity do not contend that criminal laws should always be interpreted broadly, recognizing that sometimes courts should narrow the reach of criminal statutes.[47]

The obvious assumption is that there is a viable interpretive middle ground between the lenity side of the spectrum (in which ambiguous statutes are always construed narrowly) and the anti-lenity or severity side of the spectrum (in which such statutes are always construed broadly). This assumption is quite difficult to reconcile with the courts’ rather checkered track record in interpreting federal crimes.[48] Given that courts often miss valid reasons for narrowly construing statutes, a consistently applied rule of lenity under which every ambiguous criminal statute is read narrowly is the right interpretive rule.

The political economy of criminal law confirms that lenity is the right interpretive default. The relevant question is which interpretive rule would give Congress proper incentives to make its intentions clear concerning the scope and meaning of criminal statutes. To the extent that legislatures generally share prosecutors’ desire for broad criminal prohibitions,[49] a rigidly enforced rule of lenity would operate as an information-forcing default rule, giving Congress added incentives to make its wishes known ex ante.

Additionally, once an ambiguity arises in particular settings, as it often does, the question is whether the Department of Justice or groups favoring criminal justice reform are in the best position to convince Congress to pass new legislation resolving the interpretive question. The Justice Department—the 800-pound gorilla in federal criminal law—is undoubtedly best suited to the task of overcoming legislative inertia. As Professor Einer Elhauge explains, “there is no effective lobby for narrowing criminal statutes,” whereas “an overly narrow interpretation is far more likely to be corrected…because prosecutors and other members of anti-criminal lobbying groups are heavily involved in legislative drafting and can more readily get on the legislative agenda.”[50] Strict adherence to the rule of lenity would thus put the burden of overcoming legislative inertia on the shoulders of the party in the best position to persuade Congress to act.

Finally, a reinvigorated rule of lenity would promote the more effective operation of prosecutorial restraint. When courts stand ready to expand ambiguous criminal laws to keep blameworthy offenders from slipping through the cracks in federal criminal law, prosecutors can safely “push the envelope” and stretch vague laws to their outer limit. As long as they target blameworthy offenders—and, disturbingly, even if they do not[51]—prosecutors can be confident that courts will ratify their broad readings of criminal laws.

Lenity would dramatically change the calculus by lowering the prosecution’s likelihood of conviction, giving prosecutors greater incentives to decline prosecution in cases of blameless or marginally blameworthy offenders potentially guilty only of hypertechnical, victimless crimes—the kind of offenders who tend to become ensnared in the overcriminalization net. The administration of justice in federal prosecutions, therefore, would vastly improve if federal courts started taking the rule of lenity seriously.

Proportionality-Based Approaches to Statutory Construction. If federal judges remain fickle in their adherence to the rule of lenity despite its obvious advantages, they should at least take into account the potential sentencing consequences before expanding the reach of a criminal statute. This inquiry would require courts to look past the facts of the cases before them, hypothesize the range of potential applications of the statute,[52] and pay close attention to the penal consequences of an expansive interpretation. In cases in which an expansive interpretation would threaten to visit disproportionate punishment on convicted offenders, as determined against the baseline of other criminal laws (state or federal) proscribing the same criminal act, a narrow reading is the appropriate response unless the statute’s plain meaning commands a broader interpretation.[53]

Proportionality considerations should also be factored into mens rea selection. The Supreme Court should repudiate the notion that avoiding conviction for morally blameless conduct is the only goal of mens rea doctrine.[54] A separate, equally vital and proper concern of mens rea doctrine is to ensure that the sanctions available in the event of conviction will be proportional to the blameworthiness of convicted offenders.[55]

Imposing punishment in excess of blameworthiness is just as offensive in principle as convicting blameless conduct: Either way, courts are imposing punishment that is not justified by the culpability of the offender and gambling with the moral credibility of the criminal law. Crimes for which Congress has prescribed severe penalties should require correspondingly high levels of mens rea so that offenders will be seriously blameworthy. Only then will convicted offenders be morally deserving of the stiff penalties that federal law affords.

Reinvigorate Mens Rea Requirements. Finally, courts should substantially overhaul federal mens rea doctrine. Quite simply, the doctrine is in dire need of reform both in its underlying theory and in its operational details. For the stated purpose of preventing punishment for morally blameless (or “innocent”) conduct,[56] the Supreme Court has made “innocence protection” the driving force in mens rea selection. Heightened mens rea requirements can and should be imposed where (and onlywhere) a federal criminal statute would otherwise potentially reach morally blameless conduct.[57]

In addition to making disproportionate punishment a proper concern of mens rea doctrine, courts should free the prevailing federal method of selecting mens rea from the shackles that prevent it from achieving its important goal of aligning punishment and blameworthiness. Once courts detect a potential innocence-protection problem—understood not just as the potential for punishment of blameless acts, but also as disproportionate punishment for blameworthy acts—the courts should impose whatever heightened mens rea requirement is necessary to limit punishment in accordance with blameworthiness. In doing so, courts should not be at all reluctant to require, where necessary to avoid morally undeserved punishment, prosecutors to prove knowledge that the defendant knew his conduct was illegal.

This more robust mens rea doctrine could be the single most important contribution the courts could make to avoiding the qualitative problems associated with overcriminalization. Overcriminalization horror stories typically involve prosecutors using obscure regulatory laws as traps for unwary citizens who are understandably unaware either of the existence or the meaning of the law in question.[58] To the extent that judges start demanding proof in these cases, not only of the facts that make the defendants’ conduct illegal, but also of the defendants’ knowledge that they were breaking the law, prosecutors could no longer count on guilty pleas or guilty verdicts.

The effect would not simply prevent unjust punishment, although that is a worthy goal in its own right. It would also give the federal government much-needed incentives either to give the regulated public notice that such obscure crimes exist, thereby enabling itself to prove knowing illegality, or, as one scholar helpfully suggests,[59] to use administrative or civil enforcement mechanisms in place of criminal prosecutions to achieve the government’s regulatory goals. In a free society, criminal prosecution—the most coercive and stigmatizing exercise of governmental authority—should be a last resort, reserved for cases in which the government’s legitimate regulatory goals cannot otherwise be achieved.


As this brief survey of federal criminal law has shown, overcriminalization is a serious problem in the federal system and more generally for American criminal law. The number and scope of criminal laws, however, is only the tip of the iceberg. Ultimately, overcriminalization is so problematic because it tends to degrade the quality of criminal codes and result in unwarranted punishment, jeopardizing the quality of justice the system generates. While overcriminalization is the order of the day in the federal system, rendering the legislature no longer supreme in matters of crime and punishment, it is ultimately prosecutors who exploit incompletely defined crimes and the redundancy of the criminal code to expand the scope of their enforcement power and ratchet up the punishment that convicted defendants face.

As judges decry this state of affairs and scholars hope against hope for bold legislative or constitutional solutions, they have missed something critical. Given that the federal courts helped to make federal criminal law as broad and punitive as it is, there is a ready solution to overcriminalization’s many problems short of legislative self-restraint or judicial activism in the name of the Constitution.

The solution is for federal judges to approach their vital interpretive functions with keen sensitivity to the many adverse effects that overcriminalization and the courts’ current, self-defeating interpretive strategies create for federal criminal law. If courts cease giving unwarranted scope to ambiguous criminal laws and redouble their efforts to use mens rea requirements to rule out morally undeserved punishment—understood not merely as punishment for blameless acts, but also as disproportionately severe punishment for blameworthy acts—overcriminalization need not be the disaster that so many with good cause believe it to be.

—Stephen F. Smith is Professor of Law at the University of Notre Dame.


Heritage Report: The Need for the Mistake of Law Defense as a Response to Overcriminalization

Originally published at The Heritage Foundation by Paul J. Larkin Jr. | 4/11/13

By heavily regulating criminal procedure alone but leaving the definition of crimes and offenses almost entirely in the hands of the political process, the Supreme Court has left open only one option to legislators seeking to address the problem of crime: Make more and more conduct criminal. The result in recent decades has been the “overcriminalization” of the law, with thousands of criminal offenses in federal statutes and hundreds of thousands in federal regulations. No person could possibly be expected to know them all or even to know all of those that may apply to his daily activities. Yet the law still clings to the maxim that ignorance of the law is no excuse at a time when some ignorance is inevitable, particularly regarding malum prohibitum offenses, or crimes outside the category of inherently harmful or blameworthy acts.

Mistake of law as a defense to criminal liability deserves a second look. The proposition that a defendant should be able to raise a mistake of law defense to a charge that he committed a malum prohibitum offense sensibly balances society’s strong interest in enforcement of the law and society’s even more powerful interest in not punishing morally blameless parties. Allowing the courts to filter out the phony from legitimate claims of mistake will separate the blameworthy from the blameless and protect the latter.

The cost of making that distinction likely will prove minimal and, in any event, is worth it. Punishing someone who is blameless is unjust, and that cost must be weighed too. However this change is made—whether by the Congress through a revision of the penal code or by the courts through their power to define common law defenses to crimes—it should be done.

The Overcriminalization Problem

The rule against mistake of law as a defense made sense during the development of the English common law, the ancestor of our own common law, hundreds of years ago.[1] There were fewer than a dozen felonies, and they mirrored then-contemporary morality. Murder, rape, and robbery were universally crimes against God in every religious tradition, so everyone knew that such conduct was forbidden. As John Salmond put it, “The common law is in great part nothing more than common honesty and common sense. Therefore although a man may be ignorant that he is breaking the law, he knows very well in most cases that he is breaking the rule of right.”[2]

That no longer is true. There are more than 4,500 federal crimes and potentially more than 300,000 relevant federal implementing regulations.[3] No one could know them all—not a judge, not a lawyer, and certainly not an average citizen untrained in the law. Even the Justice Department failed when it tried to identify every federal crime.[4] In addition, because so many criminal laws outlaw conduct not normally seen as blameworthy, there no longer is an understandable rule of thumb to know what is and is not a crime.[5]

Over the past 125 years, Congress has increasingly used the criminal law to enforce complex regulatory regimes that were adopted in order to protect the economy, industry, and the public from the harms endemic in a modern industrial economy.[6] The combination of regulatory programs and criminal liability, however, creates serious problems unknown to the common law.

Regulatory statutes are written broadly so that agencies have discretion to respond appropriately to new issues and dangers. Implementing regulations are detailed and complex, and they can demand scientific or technical knowledge that the average person lacks.[7] That combination is unhealthy for the criminal justice system. It demands too much to require the average member of the public to be aware of, to know where to look for, and to understand the regulatory statutes and rules on pain of criminal liability for making a mistake.

A fundamental tenet of the criminal law is that the average member of society must be able to understand it.[8] Advance warning of where the line between lawful and illegal conduct lies, or “notice,” is indispensable if the criminal law is to avoid ensnaring blameless parties. The size and complexity of today’s laws, along with the absence of a usable yardstick to guide non-lawyers, mean that morally blameless parties inevitably, but unwittingly, will commit some acts that turn out to be crimes and as a result could wind up in prison. This problem can ruin the lives of average persons.

  • Abner Schoenwetter, for example, spent six years in a federal prison for importing Honduran lobsters that were packed in plastic rather than paper and supposedly violating a Honduran regulation (later declared invalid by the Honduran Attorney General) that made his lobsters marginally too small.)[9]
  • Lawrence Lewis wound up charged with a felony and pleaded guilty to a misdemeanor for following the procedure he had been instructed to use to clean up toilet overflows at a military retirement home, which wound up shunting the refuse into the Potomac River.[10]
  • Finally, the federal government pursued a criminal investigation of the Gibson Guitar Company for importing wood for guitar frets allegedly exported illegally from India and Madagascar in violation of those nations’ laws—which in the case of Madagascar were not even written in English.[11] In other words, the federal government claimed that Gibson was guilty of a federal crime because it did not know the law of a foreign nation.

In none of those cases did the federal government accuse a party of conduct that was inherently evil, or malum in se, such as murder, rape, or robbery. Instead, the government charged Schoenwetter, Lewis, and Gibson with violating regulatory schemes that made certain conduct a crime simply because legislators decided it to be so. Such crimes are called malum prohibitum offenses.[12]

It may be reasonable for the government to employ civil or administrative remedies rather than relying on private tort actions to prevent dangers to the public health or safety. As these cases show, however, using criminal laws to serve those ends can readily lead to a miscarriage of justice. It is unrealistic to expect a law-abiding person to comply with all federal, state, and local criminal laws and nearly impossible to expect people to know the law of a foreign land.

The effect of using the criminal law to enforce a regulatory regime is to require that a person have legal training to avoid criminal liability. Only a lawyer would know where to look to find the relevant statutes and regulations; only a lawyer (and perhaps few of them) would be able confidently to know that he or she understood all of those laws; and only a lawyer could predict with any degree of accuracy how those statutes and regulations would be applied by bureaucrats, prosecutors, and judges to varying factual scenarios. Yet many of the criminal elements of regulatory laws are premised on the unspoken assumption that persons who are subject to regulation are capable of doing these things.

That assumption is unwise as a matter of policy. At the end of the day, it is not just a legal fiction that everyone knows the law today; it is a hallucination.

The Inadequacy of Piecemeal Solutions

One often-aired solution to the overcriminalization problem is for prosecutors to decline to bring charges in cases like the ones described above. Prosecutors have the discretion not to charge a person who may have technically but unknowingly committed a crime, and in many of those instances, resorting to a civil or administrative fine in lieu of a criminal prosecution can fully satisfy the federal government’s need to enforce the law and to compensate those who may have been harmed by the conduct.

The criminal law is the most severe device that any government can use against its citizens. In cases where the conduct and party at issue are not morally blameworthy, the criminal process is too ruinous a weapon for the government to deploy. No one should be forced to rely on prosecutorial discretion to avoid a criminal charge in such a case.

Under our system of government, the public is entitled to be protected by the law rather than forced to rely on the good faith, common sense, and discretion of government officials. A cardinal principle of our legal system is that the law itself should serve to protect individuals from the excesses and mistakes of the government.[13]

The Supreme Court clearly articulated that principle in 1803 in Marbury v. Madison, stating that ours “is a government of laws, and not of men.”[14] We once had a system of law in which people were subject to the discretion of a king, but we clearly rejected that approach more than two centuries ago, adopting a Constitution that stands between the government and the public and that limits the actions that prosecutors may take to those that are enacted through the legislative process set forth in the Constitution.

The Need for a Mistake of Law Defense

To address overcriminalization requires ensuring that the law itself does not trip up unsuspecting parties. The key step is to return the criminal law to its common law focus on blameworthy conduct. To achieve that result, Congress could allow a defendant to raise a mistake of law defense to establish his or her innocence.

Traditionally, Congress has left to the federal courts the responsibility to define defenses such as self-defense, duress, or necessity, or reliance on the opinion of a government official.[15] On occasion, however, Congress itself has taken up the task of defining the elements of a defense. Insanity is one example.[16] Whether defined by Congress or by the federal courts, a mistake of law defense would be a sensible way to deal with the overcriminalization problem that we see today.[17]

Mistake of Law vs. Mistake of Fact. Mistakes can be of fact, of law, or both. A mistake of fact already is a defense to some crimes because it can disprove a necessary mental state to a crime such as theft, which requires proof of the intent to deprive someone else of his or her property. Mistakenly taking your colleague’s umbrella thinking that it was your own—which is a mistake of fact—would not make you a thief.

A mistake of law defense could be used in different but analogous circumstances. For example, a person who reasonably and honestly believed that the wood he imported to make guitars was taken in full compliance with the law of the host nation could use a mistake of law defense to fend off a criminal charge such as the one used against Gibson Guitar.[18]

The common denominator in both cases is that no reasonable person would have known that his actions were a crime. Yet the criminal law currently permits a defendant to raise a mistake of fact defense but denies him the same opportunity if his mistake is legal. In both cases, however, the defendant is morally blameless.

The Current Need. That disparity made sense when the number of statutes in the penal code could be counted on the fingers of two hands and involved conduct that was commonly recognized as wrong. The economy then was agrarian, not industrial. There were no regulatory agencies and no regulations. There were very few crimes, and the courts created the ones that did exist. Congress had not yet preempted this field. But that day is long past and will never return. The penal code now is far larger and far more complex, the setting that gave birth to the common law “ignorance of the law is no excuse” rule has disappeared, and the rationale that “everyone knows the law” has vanished.

Those changes militate in favor of re-examining the merits of a mistake of law defense. In the classic words of Oliver Wendell Holmes, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”[19] If that is so, as it surely is here, it is incumbent on Congress to reconsider the common law’s refusal to recognize a mistake of law defense.

There is a powerful case to be made for that defense today. If no one could reasonably be said to know all of the rules that create criminal liability, it is unreasonable to retain the common law proposition that everyone does know them.[20] Indeed, it is intellectually dishonest for the criminal law to act as if that proposition still is or even could be true today. If a lawyer could not hope to know all of the criminal laws, what hope does an ordinary member of the public have? As the late William Stuntz observed, “Ordinary people do not have the time or training to learn the contents of criminal codes; indeed, even criminal law professors rarely know much about what conduct is and isn’t criminal in their jurisdictions.”[21]

Adults and children alike know the inherent unfairness of being punished for conduct that no one could reasonably have believed was criminal. Past and present prominent legal scholars such as Sir James Fitzjames Stephen, John Austin, Edward Keedy, Jerome Hall, and Wayne LaFave have criticized that proposition as being “an obvious fiction,” “notoriously and ridiculously false,” “absurd,” or “so far-fetched in modern conditions as to be quixotic.”[22] Those criticisms have grown stronger over time[23] Even the Supreme Court of the United States now characterizes the common law rule as a just a “cliché.”[24]

The Law Should Guarantee Fair Notice. Several contemporary legal doctrines support the proposition that a party should not be held liable for conduct that no reasonable person would have thought was a crime. The common law rule of lenity requires that any ambiguity in a criminal statute be resolved in the defendant’s favor on the ground that no one should bear the risk of criminal punishment for misreading an ambiguous law.[25] Likewise, the “void-for-vagueness” doctrine bars the government from prosecuting anyone under a vaguely written criminal law.[26] Like those doctrines, a mistake of law defense recognizes the inherent unfairness of punishing someone for conduct that he or she was unaware had been outlawed.

The rule of lenity and the void-for-vagueness doctrines address the problem of inadequate notice at the retail level, because those doctrines focus on a statute-by-statute basis. A mistake of law defense addresses the problem at the wholesale level. It addresses the problem that there are so many criminal laws that no reasonable person could be expected to know them all. Stanford Law Professor Herbert Packer’s discussion of this point merits reading in full:

If the function of the vagueness doctrine is, as is so often said in the cases, to give the defendant fair warning that his conduct is criminal, then one is led to suppose that some constitutional importance attaches to giving people such warning or at least making such warning available to them. If a man does an act under circumstances that make the act criminal, but he is unaware of those circumstances, surely he has not had fair warning that his conduct is criminal. If “fair warning” is a constitutional requisite in terms of the language of a criminal statute, why is it not also a constitutional requisite so far as the defendant’s state of mind with respect to his activities is concerned? Or, even more to the point, if he is unaware that his conduct is labeled as criminal by a statute, is he not in much the same position as one who is convicted under a statute which is too vague to give “fair warning”? In both cases, the defendant is by hypothesis blameless in that he has acted without advertence or negligent inadvertence to the possibility that his conduct might be criminal. If warning to the prospective defendant is really the thrust of the vagueness doctrine, then it seems inescapable that disturbing questions are raised, not only about so-called strict liability offenses in the criminal law, but about the whole range of criminal liabilities that are upheld despite the defendant’s plea of ignorance of the law.[27]

Like the void-for-vagueness doctrine, the mistake of law defense addresses the problem of inadequate notice—the inability for the average person to know the contours of the law without a lawyer’s guidance.


As Ronald Cass, Dean Emeritus of Boston University School of Law, has observed:

The crux of the case againstignorantia legisthus is embodied in this question: If it is inconsistent with basic notions of fairness to penalize one for an act that, because of the nonexistence, inaccessibility, or vagueness of the law, the actor believed legal when done, why is it fair to punish one who is ignorant of the law for any other reason.[28]

The common law rule that ignorance or mistake of law was not a defense made sense in a time when the criminal laws were few in number and reflected what contemporary morals made clear to all. That state of affairs no longer exists, however, so it is our duty to change the law to reflect the modern state of affairs.

Properly defined and applied, a mistake of law defense would be a valuable addition to the criminal law today. It would exculpate morally blameless parties for conduct that no reasonable person would have thought was a crime. The defense would ensure that no one could be convicted of a crime when criminal liability was unforeseeable. Both the criminal justice system and society would be better off with such a rule in place.—Paul J. Larkin Jr. is a Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. This paper is an abridged version of the detailed treatment of the subject in Edwin Meese III and Paul J. Larkin Jr. Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725 (2012), and Paul J. Larkin Jr. A Mistake of Law Defense as a Remedy for Overcriminalization, 26 A.B.A. J. Crim. Just. ___ (2013) (forthcoming).


Prison Terms for Not Installing ADA Ramps?

Originally published at Cato Institute by Walter Olson | February 9, 2012

We’ve often deplored the continued push of criminal prosecution into matters that were once considered more suitable for regulation or for the operation of civil law. A little‐​noted report a few weeks back in the Los Angeles Times may indicate the next milestone in overcriminalization:

The U.S. attorney has launched a fraud investigation to determine whether Los Angeles city officials ignored federal laws designed to protect the disabled when building or fixing up housing. …

The investigation spans January 2001 to the present, the letters said. If violations are uncovered, city agencies that used federal housing funds could face financial penalties, lose out on future grants or possibly become the subject of a criminal investigation, said [city official] Bill Carter…

Disabled activists sought an investigation because, to quote the LAT again,

In testimony and in person, activists alleged that doors were sometimes too heavy for wheelchair users to open, elevators were not working in at least one city‐​funded building, and managers either refused to rent to wheelchair users or did not have apartments available for them, [advocate Becky] Dennison said.

The activists also felt ignored because various management recommendations they made to local officials had been ignored. They already have a right to file civil suits over their grievances: indeed, shortly after the U.S. Attorney’s investigation came to light three advocacy groups did file a civil suit against the city.

There are very real problems of fraud — plain old graft and money‐​raking — on the L.A. public housing scene. But the idea of redefining fraud to include ADA noncompliance is a different matter. If taken seriously, it would mean exposing ordinary as well as dishonest local officials across the country to the specter of criminal liability. It’s notoriously hard to assure that either new or renovated buildings are 100% compliant with ambitious interpretations of the law; a design fix that satisfies three ADA consultants may displease a fourth. Criminal liability should arise from very clear, preannounced standards of conduct. That’s not the ADA.

Maybe the U.S. Attorney’s office is just raising the criminal issue as a bit of bravado to please its friends in the advocacy world and strong‐​arm the city into settling. But as playwrights know, if a shotgun is shown above the fireplace in Act I, by the middle of Act III a shot will ring out. This misguided extension of federal fraud law is worth challenging now.