Tag: rule of lenity

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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.

Conclusion

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.

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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.

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The Overcriminalization Debate: A Primer

Originally published at National Review by Jonathan Keim, Skilling v. US, Yates v. US| April 6, 2015

Second to military force, criminal law is the government’s most dangerous weapon. Recognizing its potential for misuse, the Western legal tradition has developed a wide variety of legal barriers to ensure that the punishments and stigmas of “criminal” are applied only to the people that deserve them. In this post, I hope to provide some historical background about some of the contemporary debates about overcriminalization and answer some of the most common questions.

What is “overcriminalization,” anyway?

The term “overcriminalization” usually refers to a constellation of problems with a particular criminal law, ranging from overbreadth to procedural fairness. Critiques based on concerns about overcriminalization will typically argue that the criminal law needs to be refined, narrowed, cabined, or limited in various ways that don’t detract from the central responsibility of criminal law to punish intentional blameworthy conduct.

Concerns about overcriminalization are not, however, the same as the view that criminal punishment is illegitimate or that criminals should get off with light sentences. Such an opinion would find itself at odds with most theories of criminal punishment and basic common sense. Obviously, dangerous criminals should be locked up as punishment, deterrent, and for the protection of the public. Most overcriminalization critiques, rather, are rooted in longstanding principles of the Western legal tradition, many of which go all the way back to Magna Carta.

What kind of problems and principles are you talking about?

Overcriminalization problems typically fall into five categories.

First, the criminal law can punish unintentional conduct. Without a guilty mind, or mens rea, a wrongful act has traditionally been treated as a civil tort rather than a crime. In recent years, however, Congress has increasingly defined crimes without a mens rea, forcing courts to either make one up or assume that Congress intended to punish unintentional acts with jail time.

Second, there are notice problems. The most typical is that a statute is too vague for anyone to know what it prohibits. You might think of this as the reciprocal of the commonplace principle that “ignorance of the law is no excuse” : If the judicial system is not going to accept “ignorance of law” as a defense, criminal laws ought to be sufficiently clear that diligent people can stay out of jail. This calls to mind Suetonius’ account of the Roman emperor Caligula who posted laws in very small letters and in a very narrow place to make the laws as difficult as possible to read. American law, it must be said, does not permit such shenanigans.

The Supreme Court addressed a notice problem in the 2010 case of Skilling v. United States, which raised a void-for-vagueness challenge to the federal “honest-services fraud” statute, which criminalizes schemes to defraud someone of “the intangible right of honest services.” Instead of invalidating the statute outright, though, the Supreme Court narrowed it by construction, declaring that it only covers deprivations of honest services through bribes or kickbacks supplied by a third party who had not been deceived. Only after this drastic narrowing did the Court conclude that the statute was not vague.

Third, and related to the second problem, there is overbreadth: a law may punish conduct that is innocent, socially beneficial, or harmless. This can happen in several ways. A law may be poorly drafted. A law may address a compelling problem at one moment in history, but still be on the books long after the original problem has subsided. The result is that prosecutors gain an enormous amount of discretion as they decide which cases to overlook and which to pursue.

Although prosecutorial discretion is typically used wisely, its sheer scope invites selective prosecutions based on factors like political alignment, popularity, and other non-legal factors. As FDR’s Attorney General (later Justice) Robert H. Jackson put it in a famous speech:

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. . . . It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

Sometimes legislators deliberately pass overbroad laws in an effort to look decisive. This problem arose recently in United States v. Yates (2015), which concerned an obstruction-of-justice law passed to address white-collar crime in the wake of the Enron scandal. There, though, the statute was not used to prosecute an executive who ordered destruction of financial documents or incriminating emails, but a commercial fisherman who tossed out a few undersized fish.

Fourth, there are due process questions. Although the phrase “due process” has been sorely abused by the courts in a substantive sense, procedural due process remains an important limitation on criminal punishment: Property and persons shouldn’t be seized without prior justification, nor may someone be punished without a lawful criminal conviction. These issues come up frequently as part of the discussion of civil asset forfeiture, which I hope to cover in more detail some other time.

Finally, and looming over all these other problems, the sheer scope of federal criminal law raises concerns about whether the Constitution’s allocation of powers between the states and the federal government has been upended. Expansion of the Commerce Clause and other modern trends in post-New Deal jurisprudence have enabled Congress to criminalize virtually anything with only the slightest of nods to interstate commerce, creating something that approximates a general police power. Add to that a ballooning number of federal regulations that regulate the details of modern life (many of which are hooked into criminal offenses) and you have a recipe for nearly unlimited federal power.

There are several more common overcriminalization critiques, such as concerns about excessive punishments and prison reform, but those involve normative discussions that are beyond the scope of this post.

Does all this really go back to Magna Carta? Really?

Not all, but you might be surprised at how much of the Magna Carta is relevant to today’s overcriminalization debate. If you recall, in 1215 a group of angry barons forced King John of England to write down the traditional rights of Englishmen and publish them with the royal seal, thus preventing the notoriously power- and revenue- hungry king from denying them. These rights, later published in a document that we know as Magna Carta, have been considered a definitive proclamation of the rights of Englishmen.

In fact, the drafters of the American Constitution relied closely on Magna Carta for inspiration as they sought to articulate the Bill of Rights. For instance, the Eighth Amendment’s prohibition on “excessive fines” is prefigured by Magna Carta’s article 14:

A freeman is not to be amerced [fined] for a small offence save in accordance with the manner of the offence, and for a major offence according to its magnitude, saving his sufficiency (salvo contenemento suo), and a merchant likewise, saving his merchandise, and any villain other than one of our own is to be amerced in the same way, saving his necessity (salvo waynagio) should he fall into our mercy, and none of the aforesaid amercements [fines] is to be imposed save by the oath of honest and law-worthy men of the neighbourhood. Earls and barons are not to be amerced save by their peers and only in accordance with the manner of their offence.

Some rights declared in Magna Carta raise important questions about the civil asset forfeiture debate (articles 22 and 29): 

We [the King] shall not hold the lands of those convicted of felony save for a year and a day, whereafter such land is to be restored to the lords of the fees.

* * *

No freeman is to be taken or imprisoned or disseised [dispossessed] of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

If you’re looking for a quick and accessible overview of Magna Carta’s influence on American law, I recommend the Library of Congress’s page about the famous document.

How can we fix these problems?

As the constitutionally-appointed deliberative body for lawmaking, Congress should take the lead on reform. Congress could define a default mens rea for all federal statutes, provide more concrete rules for interpreting unclear laws, and scale back criminalization of regulatory offenses. There are some indications that Congress is taking its responsibility seriously, such as the House’s creation in January of a new procedural rule ensuring that new crimes are reviewed by the Judiciary Committee. Hopefully this will improve the quality of new criminal offenses under federal law. Somewhat more ambitiously, Congress could undertake a comprehensive review of existing federal crimes and fix the problems more comprehensively.

Reform is primarily Congress’s responsibility, but the executive and the judicial branches have some tools, too. The Department of Justice, which initiates all federal prosecutions, could adopt prosecution guidelines that adopt a more cautious posture toward the problems identified above. New guidelines might, for instance, recommend that prosecutors avoid bringing cases where no mens rea must be proven, or that prosecutors not pursue prison time for crimes involving mere regulatory violations. Under Attorney General Eric Holder, the Department of Justice has already taken much more drastic action in the area of drug enforcement, so by comparison, any measures of the kind I’ve suggested would be quite modest.

The judicial branch, for its part, can faithfully apply the rule of lenity and void-for-vagueness doctrines, among other longstanding legal principles that constrain overcriminalization. If excessive judicial deference to Congress is the danger on one side, though, the danger on the other side is that judges begin substituting their idiosyncratic policy judgment s for Congress’s and judicially nullify fully constitutional laws.

The overcriminalization debate is quite complex, so I’ve necessarily skipped over numerous interesting topics in favor of broad strokes. Over the coming weeks and months, I will return to discuss some of these issues in more detail. Stay tuned!