The Texas Public Policy Foundation recently released a report on overcriminalization which I co-authored with my Right On Crime colleague, Marc Levin. The report, titled Engulfed by Environmental Crimes: Overcriminalizaton on the Gulf Coast, has received some attention across the internet after being the subject of features on FoxNews.com and The Washington Examiner.
In the report, we argue:
“’Ground zero’ for state-level overcriminalization may well be the United States Gulf Coast. Five U.S. states border the Gulf of Mexico—Texas, Louisiana, Mississippi, Alabama, and Florida—and between them, they have passed nearly 1,000 laws criminalizing activity along the coast. Criminal sanctions are of course appropriately applied to an individual who intentionally contaminates another person’s property. Too often, however, the activity that is governed by these myriad laws is non-blameworthy, ordinary business activity.”
We offer five recommendations to address the problem. First and foremost, we advise that states review their environmental regulations to determine whether criminal sanctions—in particular, prison—are appropriate. As former Texas state representative Jerry Madden says, ‘prisons are people we’re scared of, not people we’re mad at.’
Second, we advise states to strengthen the mens rea elements in their environmental criminal statutes. In environmental criminal prosecutions, offenders frequently lack the state of mind that would be necessary to convict for a traditional crime.
Third, we urge states to codify the rule of lenity and ensure that it is applied in environmental criminal cases. The rule of lenity is the canon of construction advising that vague criminal statutes be construed against the government and in favor of the defendant. It places a burden upon legislators to draft statutes as precisely as possible.
Fourth, we advise eliminating provisions that delegate to agencies the power to create new criminal offenses through rulemaking.
Finally, we encourage the adoption of safe harbor provisions. These provisions protect offenders from penalties if no harm has been done and the offender promptly acts to come into compliance.
The report is not limited to an abstract public policy discussion. In an appendix, the report documents several notorious incidents of overcriminalization throughout the Gulf states.