Originally published at Manhattan-Institute by Rafael A. Mangual | January 1, 2019
The passage of the First Step Act — the criminal-justice and prison-reform bill championed by President Trump — was a rare bipartisan triumph in this age of deep polarization.
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Originally published at 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.
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Originally published at Manhattan-Institute by James R. Copland and Rafael A. Mangual | August 8, 2018
Building on previous MI studies, this paper lays out the contours of America’s state-level overcriminalization problem. Today, state statutory and regulatory codes overflow with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers.
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Originally published at 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 Continue Reading
Originally published at Cato Institute by Tim Lynch | February 16, 2017
People: Aaron Swartz, Dudley Hiibel, Bobby Unser, Eric Garner
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Originally published by Cato Institute by Walter Olson | February 16, 2017
Congress and state lawmakers (and where appropriate, the president and executive branch law enforcement officials) should review existing law with an eye toward rolling back overcriminalization and replacing criminal penalties with civil sanctions where feasible.
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Originally published at National Review by JIM COPLAND & RAFAEL A. MANGUAL | 1/14/2017
Determining what is and what isn’t a crime should be part of the political process.
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Originally published at The Orange County Register by James R. Copland and Rafael A. Mangual | 11/17/16
Mariza Ruelas, a single mother in Stockton, California, is facing possible jail time for offering to sell her homemade ceviche, a Latin American seafood dish, through a Facebook group in which users swap recipes and occasionally swap meals. A man took her up on her offer, but unbeknownst to Ms. Ruelas, he was a government agent working on an undercover sting operation targeting those who sell food without a license.
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Originally published at 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. Continue Reading
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? Continue Reading
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. Continue Reading
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. Continue Reading
Originally published at Cato Institute by Adam Bates | November 19, 2015
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. Continue Reading
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. Continue Reading
Originally published at Cato Institute by Ilya Shapiro and Randal John Meyer | July 30, 2015
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. Continue Reading
Originally published at National Review by Timothy Head & Matt Kibbe| 5/21/15
When three missing fish can land someone in jail on felony charges, reform is needed. ‘There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” retired Louisiana State University law professor John Baker told the Wall Street Journal in July 2011. “That is not an exaggeration.” Continue Reading
Originally published at the National Review by George Will | April 9, 2015
The hyper-proliferation of criminal statutes has put too much power in the hands of prosecutors. What began as a trickle has become a stream that could become a cleansing torrent. Criticisms of the overcriminalization of American life might catalyze an appreciation of the toll the administrative state is taking on the criminal-justice system, and liberty generally. Continue Reading
Originally published at The Heritage Foundation by Paul Larkin Jr. and Michael Mukasey | February 12, 2015
What has happened to federal criminal law in recent decades? Several former senior Department of Justice officials have expressed their concern with the path we have taken,[1] along with the American Bar Association,[2] numerous members of the academy,[3] journalists,[4] and other organizations like The Heritage Foundation.[5] We agree with their considered opinion that overcriminalization is a serious problem and needs to be remedied before it further worsens the plight of the people tripped up by it and further injures the public interest Continue Reading
Originally published by Cato Institute by David Boaz | February 2, 2015
As 2014 drew to a close, the mainstream media were full of laments about the “least productive Congress.” Or more precisely that the just‐concluded 113th Congress was the secondleast productive Congress ever (since the mid‐1940s when these tallies began), second only to the 2011-12 112th Congress. Continue Reading
riginally published at Politico by Charles G. Koch & Mark Holden | January 7, 2015
As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. Continue Reading
Originally published by Charles Koch Institute | January 1, 2015
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. Continue Reading
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, The Count of Monte Cristo, The Gulag Archipelago, 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. Continue Reading
Originally published at The Heritage Foundation by Stephen F. Smith | 8/21/14
As issues of public policy go, few are as strange as overcriminalization. Once largely the subject only of academic complaint, the problems associated with overcriminalization are now more widely understood. Major think tanks,[1] media outlets,[2] civil libertarian groups,[3] and legal professional associations[4] have shined a harsh light on the injustices that federal prosecutors have committed against people who had no reason to know their actions were wrongful, much less illegal. Continue Reading
Originally published at The Heritage Foundation by Paul 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. Continue Reading
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: Continue Reading