Tag: overcriminalization

What You Don’t Know Will Hurt You: Reining in Prosecutorial Overreach with Meaningful Mens Rea Requirements

James Madison presciently warned “it will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” Sadly, however, Madison’s admonishment has fallen on deaf ears when it comes to modern statutes and regulations—which in some cases are so numerous and complex that they cannot be deciphered by trained attorneys, much less the general public.

What’s worse, federal prosecutors have seized the opportunity to use these vague statutes, and they now have the ability to prosecute almost anyone for anything. One protection against these incoherent laws and regulations, however, is that, in most criminal cases, the prosecution must prove a defendant had a certain degree of criminal intent (mens rea) to prove a violation. But in order for this protection to be effective, the courts must properly instruct the jury on the level of intent required by the statute.

In United States v. Clay, the district court—as well as a panel of judges on the Eleventh Circuit Court of Appeals—failed in this respect. In 2002, the Florida legislature enacted the “80/20 Statute,” which requires certain medical providers receiving state Medicaid funds to spend 80 percent of such funds towards “the provision of behavioral health care services” or refund the difference to Florida’s Agency for Health Care Administration (AHCA). The statute, however, was ambiguous as to how the expenditures were to be calculated and did not set out any certain guidelines. Despite this ambiguity, in 2011, federal prosecutors indicted Mr. Clay and others for healthcare fraud and making false statements relating to not properly calculating and reporting their expenditures to the AHCA. The defendants were prosecuted under a federal fraud statute, which requires the government to prove that the defendants “knew” the reports were false. The judge, however, instructed the jury that it could convict if the defendants knew either that the submissions were “untrue” or if they acted “with deliberate indifference as to the truth,” which is certainly not the same as the “knowledge” required by the statute. The district court allowed this jury instruction despite a 2011 Supreme Court case that held “deliberate indifference” cannot substitute for a statutory knowledge requirement, and a three-judge panel in the Eleventh Circuit upheld the district court’s instruction.

The Cato Institute has joined with the National Association of Criminal Defense Lawyers, the Washington Legal Foundation, the Reason Foundation and twelve criminal and business law professors in requesting the full Eleventh Circuit to rehear the case and vacate the panel’s opinion. The district court’s jury instruction was a clear departure from Supreme Court precedent, and, if upheld, would weaken one of the fundamental checks on vague statutes and over-zealous prosecutors—the requirement that the government prove someone knows they are committing a crime. 

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.

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