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
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
Judge Neil Gorsuch on Overcriminalization
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…:: Read More
The “Mens Rea” Component Within the Issue of the Over-Federalization of Crime
Posted in Overcriminalization: November 11, 2013 by Right on Crime
John S. Baker Jr., William J. Haun of the Federalist Society discuss the Task Force on Overcriminalization’s re-consideration of “the wisdom of enacting so many federal criminal laws.” Click here to read the full publication.:: Read More
Criminalizing America: How Big Government Makes a Criminal of Every American
“An estimated 4,450 federal crimes and 300,000 federal regulations attach criminal sanctions and penalties to everyday activities average Americans and business owners have little way of knowing are crimes. As a result, well-meaning, law-abiding American citizens and business owners spend innumerable hours and dollars fending off criminal prosecution for actions they never suspected were illegal, [...]:: Read More
Vikrant Reddy: Overcriminalization, Overincarceration: A Conservative Response
Vikrant discusses reasons prominent conservative political leaders are shunning the “lock ‘em up and throw away the key” approach to crime and embracing a view that the nation has created too many crimes and too many prisoners. Click here to listen to the entire podcast.:: Read More
Vikrant Reddy on Denial of Cert in ‘Saint Joseph Abbey v. Castille’
In this National Review Online article, ROC policy analyst Vikrant Reddy discusses the ruling of Saint Joseph Abbey v. Castille, a case about the unlicensed sale of a funeral casket in Louisiana, and explains why it is “a significant victory against overcriminalization and unnecessary licensing.” Click here to read the full article.:: Read More
Marc Levin on PJTV with Glenn Reynolds
Marc discusses overcriminalization with PJTV and Glenn Reynolds.:: Read More
ROC in The Washington Post
The Washington Post: Ken Cuccinelli isn’t alone. Lots of conservatives want to shrink America’s prisons. Right on Crime recognized in The Washington Post for its “opposition to overcriminalization” and for having “a growing number of high-profile supporters.”:: Read More
TPPF Overcriminalization Paper Inspires Nevada Legislation
Taking a cue from the Texas Public Policy Foundation’s paper, 12 Steps for Overcoming Overcriminalization, the Nevada State Legislature has unanimously passed Senate Bill 264. Citing the paper’s recommendation to “create a commission to examine and identify all criminal laws that are…:: Read More
“Right On Crime: The Texas Model – Part II”
“Texas has turned the tide on the building of prisons,” says Marc Levin, quoted in this article by Corrections.com.:: Read More
Federal Overcriminalization in Ohio
Recently, the Manhattan Institute held a forum in Columbus, Ohio regarding the problem of rapidly increasing federal laws, and its impact on Ohio. With an estimated average 4,500 federal laws, many Ohioans are being prosecuted for crimes they are unaware they are even breaking, and…:: Read More
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