Priority Issues: Overcriminalization

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

Criminal Minds: Defining Culpability in Michigan Criminal Law by the Mackinac Center for Public Policy

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

  • Getting Rid of Unnecessary Laws: TPPF’s PO2014

    Posted in Audio and Video, Overcriminalization, ROC Blog, State Initiatives, Texas: February 17, 2014 by Right on Crime

    Shannon Edmonds, Director of Governmental Relations at TDCAA, Paul Larkin, Senior Legal Research Fellow at The Heritage Foundation, and Representatives Bryan Hughes and Jeff Leach of the Texas House of Representatives discuss the burden of overcriminalization during the panel “Getting Rid of Unnecessary Laws” at TPPF’s Policy Orientation 2014.

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  • The Felonization of America

    Posted in Overcriminalization, ROC Blog: January 31, 2014 by Ross Marchand

    With an avalanche of state-based initiatives to reform the criminal justice system, it is easy to ignore happenings at the federal level. Unfortunately, the felonization of America continues virtually unnoticed. Federal statutes with vast reach put millions of Americans at risk of being fined or imprisoned, with much damage already done. Cambridge Attorney Harvey Silverglate [...]

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  • Right On Crime in Texas Monthly

    Posted in Adult Probation, Law Enforcement, Overcriminalization, Parole and Re-Entry, Prisons, ROC Blog, State Initiatives, Substance Abuse, Texas: January 27, 2014 by Right on Crime

    In response to Governor Perry’s remarks concerning the decriminalization of marijuana, this article by Texas Monthly credits Right On Crime’s reform policies with helping to reduce Texas’ incarceration rates. “Texas’s recent reforms on drug policy are summarized at the Right on Crime initiative, which began here, at the Texas Public Policy Foundation, and has since spread [...]

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  • The New York Times: “America on Probation”

    Posted in Adult Probation, Law Enforcement, Overcriminalization, Parole and Re-Entry, Priority Issues, Prisons, ROC Blog, Substance Abuse, Victims: January 27, 2014 by Right on Crime

    “Restoring common sense to sentencing is the obvious first step in downsizing prisons.” In his latest op-ed, Bill Keller of The New York Times, writes about the issue of mass incarceration in the U.S. and what our nation can do to reverse this trend. The ROC statement of principles is also cited in the article [...]

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  • A coalition on prisons

    Posted in Law Enforcement, Louisiana, Overcriminalization, Parole and Re-Entry, Prisons, ROC Blog, State Initiatives: January 12, 2014 by Right on Crime

    Louisiana leads the nation in incarceration. The state’s prison population doubled during the past couple of decades. As discussed in The Advocate, Kevin Kane of the Pelican Institute, along with the Texas Public Policy Foundation, are working to reverse this trend. Click here to read the article.

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  • The Huffington Post: ‘The Next Big National Policy Shift in One Chart’

    Posted in Law Enforcement, Overcriminalization, Parole and Re-Entry, Prisons, ROC Blog, The Criminal Justice Challenge: January 2, 2014 by Right on Crime

    “Led by Grover Norquist and Newt Gingrich, Right on Crime seeks to reduce the number of prisons and prisoners to fight crime, prioritize victims, and protect taxpayers.” Click here to read the article.

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  • NACDL’s “The Criminal Docket”

    Posted in Overcriminalization, ROC Blog: December 16, 2013 by Right on Crime

    The Congressional Task Force on Overcriminalization held its fourth hearing in November. Composed of five Democrats and five Republicans, the Task Force, which awaits reauthorization after its November 30 expiration, was first created on May 7, 2013, by a unanimous vote of the House Committee on the Judiciary. The Task Force was charged to “conduct [...]

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  • Man arrested for stealing a nickel of power

    Posted in Law Enforcement, Overcriminalization, ROC Blog: December 12, 2013 by Derek M. Cohen

    In what is amongst the frontrunners for “Silliest Criminal Case of 2013”, a 50 year-old Georgian was charged with the theft of about 5 cents worth of electricity from DeKalb County. The pernicious Kaveh Kamooneh, when not absconding with five entire pennies worth of electrical power from public sources, is the owner of an Atlanta [...]

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  • The Mackinac Center: ‘Not So Criminal Minds’

    Posted in Michigan, Overcriminalization, ROC Blog, State Initiatives: December 12, 2013 by Right on Crime

    The Mackinac Center for Public Policy authored a piece on overcriminalization titled “People Who Do Not Knowingly Commit Crimes” There are thousands of federal laws and many more coming from the states. So many, that at the national level the government doesn’t even try to add them up anymore. Click here to read more.

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  • Judge Neil Gorsuch on Overcriminalization

    Posted in Audio and Video, Colorado, Overcriminalization, Priority Issues, ROC Blog, State Initiatives, Video: November 18, 2013 by Vikrant P. Reddy

    On Friday night, the Honorable Neil Gorsuch of the Tenth Circuit delivered the Barbara K. Olson Memorial Lecture at the Federalist Society’s National Lawyers Convention in Washington, DC. Judge Gorsuch assumed the federal bench in 2006, and his name is frequently mentioned as a potential Supreme Court…

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