Tag Archives: void for vagueness

Making Criminals Out of All Americans

Originally published at Cato Institute by Jay Schweikert | April 25, 2018
Cases: Black v. US, Weyhrauch v. US
The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Continue Reading

Justice Gorsuch on Overcriminalization and Arbitrary Prosecution

Originally published at Cato Institute by Jay Schweikert | April 17, 2018
That’s the opening line and general theme of Justice Neil Gorsuch’s concurring opinion in Sessions v. Dimaya, announced today. In this case, Justice Gorsuch joined the Court’s four “liberals” in a 5-4 decision holding unconstitutional a provision of the Immigration and Nationality Act, which renders deportable any alien convicted of an “aggravated felony.” Continue Reading

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.
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Not Everything That’s Unseemly Should Be Illegal

Originally published at Cato Institute by Ilya Shapiro and Randal John Meyer
The explosion in criminal statutes is only a part of the problem of overcriminalization. The other side of the coin is prosecutorial discretion: a prosecutor’s official authority to charge certain offenses and not to charge others. The growth of criminal codes, state and federal, gives prosecutors more tools, which allows them to both “stack” charges and expand the reach of criminal code provisions to new, non-criminal facts. Continue Reading

Heritage Report: Shining a Light on Over-Criminalization

Originally published at The Heritage Foundation by Jordan Richardson | June 1, 2015
Overcriminalization—the overuse or misuse of the criminal law to address societal problems—is a troubling phenomenon that touches every segment of society.[1] It manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and criminal sanctions for simple mistakes or accidents under a theory of strict liability. Continue Reading

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. Continue Reading

An Era of Overcriminalization

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

Yates v. United States: Angling for A Narrower Statute

Originally published at National Review by Jonathan Keim | November 6, 2014
The justices made waves Wednesday during Supreme Court arguments (transcript here) in Yates v. United States, a case about a federal obstruction of justice statute, 18 U.S.C. § 1519, that was passed as part of the Sarbanes-Oxley legislation, which was originally intended to broaden federal white collar criminal laws after the Enron debacle. Continue Reading

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. Continue Reading

Overcriminalization Undermines Respect for Legal System

Originally published at The Heritage Foundation by John G. Malcolm and Norman L. Reimer | 12/11/13
Despite some of the sharpest political divisions in memory, Congress managed to mount one noteworthy bipartisan effort this year. Since May, the Over-criminalization Task Force, comprising five Republicans and five Democrats from the House Judiciary Committee, has worked diligently to develop recommendations that will address some of the fundamental problems plaguing the federal criminal justice system. Continue Reading

The Foreign Corrupt Practices Act: Clarification Is Not Enough

Originally published at Cato Institute by Walter Olson | November 11, 2011
The Foreign Corrupt Practices Act, enacted in 1977 and the subject of a high‐​profile federal enforcement campaign in recent years, is a feel‐​good piece of overcriminalization that oversteps the proper bounds of federal lawmaking in at least four distinct ways, any of which should have prevented its passage. It is extraterritorial, purporting to punish overseas misdeeds which deprive no Americans of liberty or property and whose punishment is better left in the hands of authorities elsewhere. Continue Reading