Overcriminalization in the Financial Reform Legislation

The Heritage Foundation and National Association of Criminal Defense Lawyers (NACDL) made a stir by announcing their joint report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. The report highlights the growth of federal criminal provisions in the 109th Congress. Many criminal statutes are drafted without the traditional requirement of criminal intent. When there is no requirement that the government prove you “willfully” or “knowingly” broke the law, mistakes are treated the same as intentional criminality. Some laws are written so broadly that it is impossible for anyone to know what conduct is illegal. Criminal provisions are included in statutes that are never reviewed by the judiciary committees of either chamber of Congress.

The NACDL has a follow-up analysis of the financial regulatory reform currently being considered by Congress. The Restoring American Financial Stability Act of 2010 has passed both houses and is heading into committee.

This 1600-page bill does everything that the Without Intent report warned against. The “reckless disregard” intent requirement is imported from tort law in several provisions and many others have no mental state requirement at all. New bribery and mail/wire fraud provisions are included where none are necessary. Bribery and fraud are already illegal.

Read the whole thing (direct .pdf link here).