Tag: overcriminalization

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.

Not Everything Can Be a Federal Crime

Cato legal associate Carl DeNigris co-authored this blogpost.

Over the last few decades, the number of federal crimes has exploded. The U.S. criminal code has grown so large and so expansive that no one is exactly sure how many federal crimes are actually on the books, with estimates ranging from 4,000 to 300,000. As Justice Scalia has noted, “It should be no surprise that as the volume increases, so do the number of imprecise laws.”

Many individuals and organizations from across the ideological spectrum have voiced concern over this growing trend, recognizing that broadly defined crimes lack the clarity traditionally required before depriving citizens of their liberty.

The expansion of 18 U.S.C § 1001, which criminalizes the knowing and willful making of materially false statements in “any matter within the jurisdiction of” the United States, exemplifies this broadening scope. Cory King was prosecuted under this statute for making a false statement to a state official wholly unconnected to any federal agency or investigation. Yet, the Ninth Circuit held that Mr. King violated § 1001 because the subject matter of his statement was one over which a federal government agency possessed regulatory authority.

King has now asked the Supreme Court to hear his case. Cato has joined the National Association of Criminal Defense Lawyers and the Texas Public Policy Foundation on a brief supporting him and arguing that the Ninth Circuit stretched § 1001 beyond its proper jurisdictional reach. Such an unbounded interpretation risks greater over criminalization and further misuse of the federal criminal code.

Moreover, since § 1001 is a “process crime” that focuses on offenses “not against the particular person or property, but against the machinery of justice itself,” an excessively broad construction would undermine the integrity of the criminal justice system. Wider application of such crimes facilitates pretextual prosecutions, in which “the operating philosophy seems to be that, if the government cannot prosecute what it wished to penalize, it will penalize what it can prosecute.”

Such an arbitrary and far-reaching application of the criminal code – the federal criminal code, at that – has no place in a free society.

The Court will decide whether to take up King v. United States sometime this spring.

Feds Take in Billions with Forfeiture Powers

Today’s Wall Street Journal has part 2 of its critical look at the powers of federal law enforcement agencies and the focus of this article is on the power to seize cash, cars, homes, and other assets from people who have not been convicted of a crime.  It’s called “civil asset forfeiture”  because there is no criminal prosecution.  Here’s an excerpt (subscription only):

New York businessman James Lieto was an innocent bystander in a fraud investigation last year. Federal agents seized $392,000 of his cash anyway.

An armored-car firm hired by Mr. Lieto to carry money for his check-cashing company got ensnared in the FBI probe. Agents seized about $19 million—including Mr. Lieto’s money—from vaults belonging to the armored-car firm’s parent company.

He is one among thousands of Americans in recent decades who have had a jarring introduction to the federal system of asset seizure. Some 400 federal statutes—a near-doubling, by one count, since the 1990s—empower the government to take assets from convicted criminals as well as people never charged with a crime.

Last year, forfeiture programs confiscated homes, cars, boats, and cash in more than 15,000 cases.  The total take topped $2.5 billion, more than doubling in five years, Justice Department statistics show.

The expansion of forfeiture powers is part of a broader growth in recent decades of the federal justice system that has seen hundreds of new criminal laws passed.  Some critics have dubbed the pattern as the overcriminalization of American life.

Last year, Cato hosted an event on the problem of forfeiture law and before that published numerous books and studies and articles.  It’s nice to see the Wall Street Journal highlighting this problem for its readership.

Saving a Baby Woodpecker: The Legal Consequences

Federal law makes it illegal to “take,” “possess,” or “transport” a migratory bird except under permit. If you worry that this sweeping language might give the federal government too much enforcement power, perhaps you are one of those horrid House Republicans who, according to Bryan Walsh in Time magazine, are in the grip of “antigreen ideology” and want to “essentially prevent” agencies like the Department of the Interior “from doing their jobs.” Who else would object to laws meant to protect Nature?

It’s a pretty safe bet that Walsh hasn’t met the Capo family of Fredericksburg, Virginia. According to a report on broadcast station WUSA, and now being picked up far and wide by other news outlets, 11-year-old Skylar Capo saved a baby woodpecker in her back yard from the family cat and decided to keep it for a day or two to make sure it wasn’t injured before letting it go. The family’s problems began when Skylar took the bird into a Lowe’s to keep it out of the hot sun and was spotted by a woman in the store who confronted her and said she was a Virginia state game officer. Two weeks later, says Skylar’s mother Alison, the woman showed up at their front door accompanied by a state trooper with the news that the family owed a fine of $535; the federal law also carries possible jail time. (The bird itself was long gone by this point, having been released the same day of the store visit, the family says.)

With publicity about the case hitting the wires, the U.S. Fish and Wildlife Service has now announced that it has rescinded the fine—the ticket had been mistakenly issued, it insists, in spite of a decision not to pursue charges. That also presumably takes care of the worry about jail time. But really, if you’re the parent of a youngster fascinated by backyard wildlife, why take chances? Order them back indoors to play video games and watch TV. It’s much legally safer that way.

For more from Cato on overcriminalization, see posts like this, this, and this.

The Minefield of American Criminal Law

Over the weekend, the Wall Street Journal ran an excellent article about the problem of overcriminalization—the proliferation of criminal laws and how more and more people can find themselves on the wrong side the law without even realizing it. Here’s an excerpt:

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.

Read the whole thing.

It’s great that this phenomenon is getting more attention. Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers. That’s twisted. Before an elected official can take any action whatsoever, he or she must first take an oath to uphold and preserve the Constitution—and the role of the federal government in the criminal area is supposed to be quite limited. I testified before a congressional committee two summers ago on this subject. And Judge Alex Kozinski, quoted in the WSJ article above, has a terrific essay in my book, In the Name of Justice, about the score of federal criminal laws now on the books. And Cato adjunct scholar Harvey Silverglate authored a fine book on the problem, called Three Felonies a Day. More here (pdf) and here.

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