In 2010, the Texas Public Policy Foundation published “Analyze Before You Criminalize.” Policymakers appreciated the checklist, but they also asked an important follow-up question: “This checklist helps us prevent new overcriminalization, but how do we reverse the overcriminalization that has already occurred?” In response, the Foundation has now released a guide with some answers: 12 Steps for Overcoming Overcriminalization. The recommendations are as follows:
1. Identify weak mens rea protections;
2. Adopt a default mens rea statute;
3. Enact the Rule of Lenity;
4. Don’t criminalize offenses based on voluntary economic transactions;
5. Eliminate unnecessary occupational licensing requirements;
6. Eliminate delegation of power to agencies through rulemaking;
7. Require that criminal laws unrelated to controlled substances include potential or actual harm to an individual victim as an element of the offense;
8. Identify and consolidate duplicative laws which sanction essentially the same behavior;
9. Reclassify misdemeanors to remove jail time when unnecessary or convert to a civil violation;
10. Apply consistent criteria in distinguishing felonies from misdemeanors;
11. Create a commission to examine and identify all criminal laws that are redundant, unnecessary, or overbroad;
12. Apply the Tenth Amendment to criminal law.
The recommendations are followed by brief explanations and several notorious examples of overcriminalization. The complete document can be read here.