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

  • Ohio Examines Criminal Intent

    Posted in Articles, Criminal Justice News, Ohio, Overcriminalization, ROC Blog: January 21, 2015 by Right on Crime

    The Daily Signal celebrates a new law passed in Ohio that requires mental culpability to be considered when crafting future statutes, and quotes tragic cases involving the lack of this protection, provided by Right on Crime’s Vikrant Reddy. Read the article here.

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  • House Rule May Bring Changes to Criminal Justice in Texas

    Posted in Articles, Criminal Justice News, Juvenile Justice, Overcriminalization, ROC Blog, Texas: January 16, 2015 by Right on Crime

    House Rule May Bring Changes to Criminal Justice in Texas The newly proposed H.R. No. 4 brings two very interesting things to the table in the criminal justice arena. One of these changes is a required notation on bills if they create new criminal offenses. This is a clear improvement that will alert legislators to […]

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  • Reddy: In Support of Mens Rea Protections in Ohio

    Posted in Articles, Criminal Justice News, Ohio, Overcriminalization, Research, ROC Blog: December 8, 2014 by Right on Crime

    Being convicted of a crime is a very serious event that can close many doors in a person’s life. This is why there are many measures taken to ensure that only the guilty are treated as such. But now many states, including Ohio, have removed a key historical protection of citizens, mens rea. Mens rea, […]

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  • Creeping Overcriminalization Threatens Ordinary Citizens

    Posted in Articles, Criminal Justice News, Overcriminalization: November 6, 2014 by Right on Crime

    A fisherman is currently facing trial with the possibility of twenty years in prison for losing three fish. This type of rampant expansion of criminality endangers all people, and neglects a long honored judicial doctrine, the rule of lenity. This ensures that if there is a statute with two reasonable readings, the one that can […]

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  • Overcriminalization Goes to the Supreme Court

    Posted in Events, Overcriminalization, ROC Blog: October 31, 2014 by Right on Crime

    Ahead of oral arguments in U.S. v. Yates, legal experts demand an end to the proliferation of thousands of capricious federal statutory crimes Austin, TX— In the run-up to the Supreme Court’s hearing of oral arguments in U.S. v. Yates, Right on Crime, the nationally recognized conservative criminal justice reform organization, will convene a briefing […]

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  • Overcriminalization in America: No Home for Justice

    Posted in Overcriminalization, ROC Blog, Video: October 21, 2014 by Right on Crime

    Overcriminalization in America: No Home for Justice

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  • Pat Nolan: Fear of Crime and the Prison Build Up

    Posted in Audio, Audio and Video, Criminal Justice News, Overcriminalization, Prisons, Right on Crime Signatories, ROC Blog, Video: October 17, 2014 by Right on Crime

    Pat Nolan, Director of the Center for Criminal Justice Reform at the American Conservative Union Foundation and Right on Crime Director of Outreach, talks about how being a former legislator and having served time in prison has made it clear for him to see the bureaucracy within the criminal justice system. This is a driving factor in his passion […]

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  • Marc Levin testifies before U.S. House Judiciary Commitee

    Posted in Audio and Video, Law Enforcement, Overcriminalization, ROC Blog: May 30, 2014 by Right on Crime

    Marc Levin, Policy Director of Right on Crime, testified before the U.S. House of Representatives’ Judiciary Committee on the subject of over-criminalization. Click here to watch the hearing.

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  • Levin, Cohen: The End of Penal ‘One-Upmanship’

    Posted in Articles, Media, Overcriminalization, ROC Blog, State Initiatives, Texas: May 27, 2014 by Right on Crime

    Right on Crime Policy Director Marc Levin and Policy Analyst Derek Cohen write in The Crime Report: The National Academies’ exhaustive report, “The Growth of Incarceration in the United States: Exploring Causes and Consequences,” released last month, covers nearly the entire body of scholarship on the causes of the incarceration boom. The causes, as identified by […]

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  • Getting Rid of Unnecessary Laws: TPPF’s PO2014

    Posted in Audio and Video, Events, Overcriminalization, ROC Blog, State Initiatives, Texas, Video: 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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