I. The Issue

Thousands of harmless activities are now classified as crimes in the United States. These are not typical common law crimes such as murder, rape, or theft.  Instead they encompass a series of business activities such as importing orchids without the proper paperwork, shipping lobster tails in plastic bags, and even failing to return a library book.  There are over 4,000 existing federal criminal laws.  (The exact number of laws is unknown because the attorneys at Congressional Research Service who were assigned to count them ran out of resources before they could complete the herculean task.)

In addition to the profusion of federal statutory crimes, there are additional state crimes (Texas alone has over 1,700), and federal regulatory offenses (approximately 300,000). The creation of these often unknowable and redundant crimes, the federalization of certain crimes traditionally prosecuted at the state level, and the removal of traditional mens rea requirements all contribute to a relentless trend known as overcriminalization.

II. The Impact

Significant differences between criminal and civil law make criminal law an overly blunt instrument for regulating non-fraudulent business activities.  Whereas administrative rulemaking and civil proceedings may utilize a cost-benefit analysis to evaluate the conduct at issue, no such balancing occurs in criminal proceedings because, theoretically, criminal law covers only those activities that are inherently wrong.

Also, because criminal law is enforced entirely by state prosecution, it tends to minimize the role of the victim.  Indeed, the prototypical “regulatory” offense does not include anyone actually being harmed as an element of the offense.  Finally, civil and criminal law have traditionally been distinguished by the requirement that a criminal must have a guilty state of mind.  An increasing number of regulatory offenses nevertheless dispense with this requirement or require mere criminal negligence rather than intentional, knowing, or reckless conduct.

III. The Conservative Solution

• Stop creating new criminal offenses as a method of regulating business activities. Regulation is better handled through fines and market forces, not the heavy stigma of criminal sanctions

• Avoid licensing new occupations and revise laws to eliminate criminal penalties that are currently associated with many occupations.

• Ensure that an appropriate culpable mental state is included in the elements of all offenses.

• Return the responsibility for prosecuting and punishing traditional crimes to the states.

• Revise criminal laws to remove ambiguities and consolidate redundant laws to help prevent prosecutorial abuse.

Arresting the Growth of Criminal Law in Texas by the Texas Public Policy Foundation

Arresting the Runaway Growth in State Criminal Law by the Texas Public Policy Foundation

Big Brother on the Beat: The Expanding Federalization of Crime by Ed Meese in the Texas Review of Law and Politics

The Burden of Immigration Laws on Business by the Texas Public Policy Foundation

Can Someone Please Turn on the Lights? Bringing Transparency to the Foreign Corrupt Practices Act by Michael B. Mukasey and James C. Dunlop in Engage

Criminal Law Checklist for Federal Legislators by the Heritage Fouondation, Texas Public Policy Foundation, Washington Legal Foundation, and National Association of Criminal Defense Lawyers

Criminal Law Checklist for State Legislators by the Texas Public Policy Foundation

Engulfed by Environmental Crimes: Overcriminalization on the Gulf Coast by the Texas Public Policy Foundation

How Many Laws Did You Break This Week?: Overcriminalization in Colorado by the Independence Institute

Mens Rea and State Crimes by the Federalist Society

Not Just for Criminals: Overcriminalization in the Lone Star State by the Texas Public Policy Foundation

Overextending the Criminal Law by the Cato Institute

Solutions for America: Overcriminalization by the Heritage Foundation

Time To Rethink What’s a Crime: So-Called Crimes are Here, There, and Everywhere by the Texas Public Policy Foundation

Twelve Steps for Overcoming Overcriminalization by the Texas Public Policy Foundation

Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law by the Heritage Foundation and National Association of Criminal Defense Lawyers

Working With Conviction: Criminal Offenses as Barriers to Entering Licensed Occupations in Texas by the Texas Public Policy Foundation

• CQ article on conservative criminal justice reform

  Posted in Overcriminalization, Prisons, ROC Blog, Substance Abuse: May 17, 2013 by Brendan Steinhauser

  This Congressional Quarterly article is worth reading in full. Note the mention of Right on Crime and the various conservative lawmakers who are supporting our efforts. An End to the Jailhouse Blues? By John Gramlich, CQ Staff Congressional Democrats have argued for years that too many low-level drug offenders are locked away in federal prisons [...]

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• Grover Norquist on Michael Medved radio show

  Posted in Adult Probation, Audio, California, Law Enforcement, Oregon, Overcriminalization, Parole and Re-Entry, Prisons, ROC Blog, Substance Abuse, Texas: May 9, 2013 by Brendan Steinhauser

  Here is a partial transcript from a recent Michael Medved radio show, where he interviewed signatory Grover Norquist about our work on criminal justice reform. They discussed the conservative way forward for prison reform, and ensuring that taxpayers get the best deal from the system, all while reducing crime and recidivism. Medved: So are we [...]

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• Overly Restrictive Occupational Licensing Inhibits Texas Growth

  Posted in Overcriminalization, ROC Blog, Texas: April 16, 2013 by Jeanette Moll

  Last year, Texas was ranked with the 17th highest burden occupational licensing imposes on the workforce. A full one-third of low-income occupations in Texas are licensed. The Texas Public Policy Foundation and Right on Crime have long alerted policymakers to the inherent issues with overusing occupational licensing. This practice inhibits economic growth, restricts employment, and [...]

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• All Kids Make Mistakes

  Posted in Audio and Video, Juvenile Justice, Overcriminalization, ROC Blog: April 15, 2013 by Brendan Steinhauser

  Did you know only 5% of the kids in prison have committed violent crimes?  Learn more from this video by Mistakes Kids Make:

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• Vikrant Reddy interviews with Christian Broadcasting Network

  Posted in Overcriminalization, Prisons, ROC Blog, Texas: April 11, 2013 by Brendan Steinhauser

  This morning, Right on Crime policy analyst Vikrant Reddy interviewed with Paul Strand of the Christian Broadcasting Network. Vikrant spoke about the Texas model of criminal justice reform, and about how other states are following suit. He specifically discussed issues like overcriminalization, alternatives to incarceration and reducing criminal justice costs. Here is a picture of [...]

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• Senator Rand Paul talks criminal justice at Howard University

  Posted in Adult Probation, Juvenile Justice, Kentucky, Law Enforcement, Overcriminalization, Parole and Re-Entry, Prisons, ROC Blog, Substance Abuse: April 10, 2013 by Brendan Steinhauser

  Read the full text of Senator Rand Paul’s speech at Howard University today. He focused on how conservative values, including those that deal with criminal justice reform, can better people’s lives and limit government power. Here is an excerpt from the speech today. Our federal mandatory minimum sentences are simply heavy handed and arbitrary. They [...]

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• Senator Rand Paul leading the way on Criminal Justice Reform

  Posted in Kentucky, Overcriminalization, Prisons, ROC Blog: April 5, 2013 by Brendan Steinhauser

  We were pleased to read this article in The Washington Times by Kentucky Senator Rand Paul. The good senator is supporting Right on Crime principles of fighting crime, prioritizing victims and saving taxpayer dollars. He is trying to move legislation that would reform the federal mandatory minimum laws currently on the books. Senator Paul knows [...]

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• Toaster Pastries: A Threat to Schools?

  Posted in Overcriminalization, Priority Issues, ROC Blog: April 4, 2013 by Brendan Steinhauser

  Right on Crime has for some time now noted the overcriminalization of our schools and the general lack of common sense in implementing school discipline policies. This trend may have hit its apex when a seven-year-old in Maryland took a few bites out of a toaster pastry, noticed it looked like a gun, and said [...]

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• Good article on mandatory minimums

  Posted in Adult Probation, Arizona, Oregon, Overcriminalization, Prisons, ROC Blog: April 2, 2013 by Brendan Steinhauser

  Check out this article from an activist in Arizona about mandatory minimums. The writer makes some good points and mentions the Right on Crime campaign! It is for this reason I am proud to be affiliated with Right On Crime, a campaign dedicated to “fighting crime, restoring victims and protecting the taxpayer.” Endorsed by prominent [...]

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• Reason Magazine mentions our work

  Posted in Adult Probation, Florida, Overcriminalization, Prisons, ROC Blog, Texas: March 26, 2013 by Brendan Steinhauser

  This morning on Fox News Sunday Sen. Rand Paul (R-Ky.) gave his most extensive answer yet on how he feels about U.S. drug laws. The short version: He doesn’t endorse legalizing drugs, but he also doesn’t want to lock up nonviolent offenders for “extended periods of time.” All that said, there’s another way to look at [...]

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