Tag: overcriminalization

The WellCare Case Provides an Example of Overcriminalization in Action

Overcriminalization is not a myth. Labyrinthine regulations often produce absurd outcomes, including prison sentences for individuals who do everything in their power, including consulting multiple attorneys, to comply with the law before acting.

A recent op-ed in The Washington Times illustrates the point, using a recent Medicaid fraud case that is currently in front of a federal appeals court:

Here’s a quiz: Which of the following is a federal crime: (a) A hamster dealer needlessly tilting a hamster’s cage while in transit; (b) subliminally advertising wine; or (c) selling a fresh steak with paprika on it?

Give up? The answer: all of the above.

Right now, there are approximately 4,500 federal criminal statutes and 300,000 administrative regulations that can be punished with imprisonment — and the list keeps growing. This is an invitation for our government to over-prosecute. Too often, federal prosecutors are accepting that invitation and rejecting more measured and effective administrative and civil remedies.


In a case that was recently argued before a federal appeals court, executives at WellCare, a managed health care company in Florida, were prosecuted based on their reasonable interpretation of a Florida statute. Federal prosecutors, however, disagreed with the company’s interpretation, even though Florida never issued any regulations contradicting the executives’ reading of the law.

President Obama Announces Drug Sentence Commutations

Today President Obama announced that 46 non-violent drug offenders will have their sentences commuted and be released this year.  The announcement comes ahead of President Obama’s speech on sentencing reform later this week from a prison in Oklahoma.

The vast majority of the offenders were convicted of cocaine offenses, along with a handful of marijuana cases and some general “controlled substance” violations.  The lowest initial sentence among the 46 was 15 years, while several received life sentences.  In issuing the commutations the White House noted that, due to recent sentencing reforms, these sentences are out of step with the sentences the offenders would receive for the same violations today:

These unduly harsh sentences are one of the reasons the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system. Today, he is continuing this effort by granting clemency to 46 men and women, nearly all of whom would have already served their time and returned to society if they were convicted of the exact same crime today.

The list of recipients, along with their offenses, can be found here.  

Fifth Time’s a Charm? Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague

The Armed Career Criminal Act (ACCA) increases the minimum criminal penalty for defendants convicted of illegal firearm possession who also have three prior violent crime convictions. While the Act lists many crimes as qualifying as “violent”—such as burglary, arson, and extortion—it also contains a catch-all provision, a “residual clause,” that includes crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”

While that language may seem clear, its precise meaning has bedeviled courts for decades. In fact, Johnson v. United States represents the fifth time since 2007 that the Supreme Court has been asked to clarify what the residual clause means. For example, does drunk driving count? How about fleeing from officers in a high-speed chase? Even though the high court only hears about 75 cases per year—and it rarely revisits a law within such a short time-span—the ACCA’s residual clause keeps coming back. As Justice Antonin Scalia quipped in the last such case, “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.” Justice Scalia’s comment came in a dissent in which he argued that the residual clause is unconstitutionally vague, and it seems that the rest of his colleagues paid attention. This is the second time this term that this case will be argued before the Court.

Last November, the issue was whether merely (illegally) possessing a short-barreled shotgun is a crime that fits into the residual clause. In January, however, the Court ordered that the case be re-argued on the larger question of whether the residual clause is itself unconstitutionally vague. Apparently, in discussing the law for the fifth time, the justices got tired of trying to answer questions that Congress should have addressed by writing a clearer law.

Bipartisanship at Its Finest

“Bipartisanship” sounds like a good idea in theory, but it usually ends up as broad congressional agreement that the American people have too many liberties or too much money. However, there is one area in which there is a growing bipartisan effort toward increased individual liberty: fighting overcriminalization.

Today, the House Judiciary Committee’s Overcriminalization Task Force held its second hearing, in which members of Congress asked two leading legal experts about the importance of restoring some sanity to federal law. Specifically, this hearing focused on the lack of mens rea—that is, criminal intent—in many federal criminal prosecutions. Put simply, as the law stands, an American can unknowingly and accidentally break federal law yet still be held criminally liable for felonies in federal courts. The conduct that leads to these prosecutions is often not serious, and sometimes nothing more than an administrative mistake. Other times, these offenses are simply the result of overzealous federal prosecutors stretching the limits of broad statutory or regulatory language to pad their conviction totals without much effort or expenditure. Yet these seemingly harmless acts can trigger prosecutions that can cost families their livelihoods or even land innocent people in federal prison.

The abuse of the law is so clear that, throughout the hearing that lasted just over an hour, 10 members of Congress and two witnesses—Norman Reimer of the National Association of Criminal Defense Lawyers and law professor John Baker—found very little about which to disagree. You can watch the very heartening and informative hearing here (action begins at the 19:00 minute mark, just after 9:03AM), via the Library of Congress on USTREAM.

For a primer on overcriminalization, I highly recommend Cato’s new video with Families Against Mandatory Minimums’ Molly Gill:

For more Cato on overcriminalization, see here and here.

George Will: We Need More Justice in Our ‘Justice System’

George Will’s latest column is a scathing attack on explosive growth in the federal criminal code, mandatory minimum sentencing, and plea bargaining. Here is an excerpt:

The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”

He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Good stuff. For related Cato scholarship, go here, here, and here.

Congress Looks at Overcriminalization

The House Judiciary Committee has created a task force to address the problem of overcriminalization. 

Here are some statements from the news release:

Chairman Goodlatte:  “Over-criminalization is an issue of liberty.  As federal criminal laws and regulations have increased, so has the number of Americans who have found themselves breaking the law with no intent of doing so. Americans who make innocent mistakes should not be charged with criminal offenses.   We need to take a closer look at our laws and regulations to make sure that they protect freedom, work as efficiently and fairly as possible, and do not duplicate state efforts.  I am hopeful that the bipartisan task force established today will be able to reach consensus and make recommendations to the House Judiciary Committee on how to improve our federal criminal statutes and protect our freedom.”

Ranking Member Conyers:  “Unduly expansive criminal provisions in our law unnecessarily drive up incarceration rates. Almost one-quarter of the world’s inmates are locked up in the United States, yet Americans constitute only 5 percent of the world population. In addition, the incarceration rate for African Americans is six times that of the national incarceration average. I welcome the work of the over-criminalization task force in analyzing this serious issue.”

Crime Subcommittee Chairman Sensenbrenner: “Our current criminal code is riddled with outdated provisions, inconsistent with modifications made to reflect America’s contemporary approach to criminal law. This bipartisan task force will review federal laws in Title 18 and work to clean it up. Congress must ensure the federal role in criminal prosecutions is properly limited to offenses within federal jurisdiction and within the scope of constitutionally-delegated federal powers. I also plan to reintroduce the Criminal Code Modernization and Simplification Act which reforms and recodifies Title 18 of the U.S. Code. This bill cuts more than one-third of the existing criminal code, consolidates criminal offenses from other titles, and streamlines the code to make it more coherent for attorneys, judges, and Congress.”  

Crime Subcommittee Ranking Member Scott:  “Although crime is primarily a matter for states and localities to handle, over the last 40 or so years Congress has increasingly sought to address societal problems by adding criminal provisions to the federal code.  There are now over 4,000 federal criminal provisions, plus hundreds of thousands of federal regulations which impose criminal penalties, often without requiring that criminal intent be shown to establish guilt.  As a result, we are hearing many complaints of overuse and abusive uses of federal criminal laws from a broad-based coalition of organizations ranging from the Heritage Foundation to the National Association of Criminal Defense Lawyers.  Today, we are establishing a bipartisan task force on over-criminalization to assess issues and make recommendations for improvements to the federal criminal system, and I look forward to working with my colleagues on this worthy endeavor.”

I testified before the Committee on this subject about a year ago. Good to see some action on this front.