On Monday, Bloomberg Law’s ‘United States Law Week’ section published a compelling column on overcriminalization by former U.S. Attorney Brett Tolman. In the piece, Tolman describes the broader problem of overcriminalization and also the specific issue of prosecuting individuals for violating administrative interpretations that Congress never passed into law.
A federal prosecution needs to be based upon a law passed by Congress. But hundreds of thousands of regulatory laws adopted by agencies further expand the conduct that can be prosecuted. Those regulations are required to be adopted in a manner consistent with Constitutional due process principles reflected in the Administrative Procedure Act.
However, regulators started taking shortcuts and creating “guidance documents” that don’t satisfy APA requirements, and then relying on these “guidance documents” to bind Americans to standards that were never lawfully adopted. This practice is particularly unfair in a criminal case given the potential consequences to the accused.
Thankfully, the Department of Justice has amended its Justice Manual, a document that provides guidance to prosecutors, to clarify that agency guidance documents are not a substitute for law and that “mere noncompliance” with one cannot be the basis of criminal enforcement.
Tolman went on to describe the WellCare case and the conviction of Todd Farha under this now-discarded shortcut. The WellCare case is one of several prosecutions highlighted in OIA’s Cases section, that provides instances of administrative agencies and prosecutors abusing the criminal law to serve their own ends.
The Tolman piece is well worth reading in full here.