Republicans recognize overcriminalization

A section of the platform agreed to at the Republican National Convention expresses concern over the rise of overcriminalization:

“The resources of the federal government’s law enforcement and judicial systems have been strained by two unfortunate expansions: the over-criminalization of behavior and the over-federalization of offenses. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to over 4,450 by 2008. Federal criminal law should focus on acts by federal employees or acts committed on federal property — and leave the rest to the States. Then Congress should withdraw from federal departments and agencies the power to criminalize behavior, a practice which, according to the Congressional Research Service, has created ‘tens of thousands’ of criminal offenses. No one other than an elected representative should have the authority to define a criminal act and set criminal penalties. In the same way, Congress should reconsider the extent to which it has federalized offenses traditionally handled on the State or local level.”

Overcriminalization has risen to become a serious threat to the freedom and liberty of citizens, placing increasing and arbitrary power in the hands of federal officials. According to The Heritage Foundation, overcriminalization is characterized by these factors:

  1. The use of strict liability crimes (i.e., offenses that dispense with the requirement that a person act with a “guilty mind,” however defined) to outlaw conduct, particularly in commercial and regulatory fields;
  2. The passage of several laws applicable to the same conduct, which enables prosecutors to multiply charges and thereby threaten a person with a severe term of imprisonment if he does not accept a plea bargain;
  3. The delegation to administrative agencies of the responsibility for filling in the details of a substantive criminal law, which thereby vests in the agency responsible for enforcing the law the power also to define its terms; and
  4. Enforcing through the criminal law conduct that, if it is to be enforced by the government at all, should be enforced through administrative or civil mechanisms.

The first item should be particularly troubling to citizens, as it removes one of the elements necessary to convict someone of a crime — that the person intended to commit a crime. The Heritage Foundation paper Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law explains:

“A core principle of the American system of justice is that individuals should not be subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful. Only in such circumstances is a person truly blameworthy and thus deserving of criminal punishment. This is not just a legal concept; it is the fundamental anchor of the criminal justice system.”

After noting the 4,450 federal laws and estimating that tens of thousands more are located in federal regulations, the authors explain the problem regarding intent:

“But something fundamental is often lacking from this tidal wave of penal provisions: meaningful mens rea requirements. Mens rea is a Latin term describing a culpable mental state, without which there can be no crime. Lamentably, Congress has enacted scores of laws with weak or no mens rea requirements, the result of a legislative process that is haphazard at best and arbitrary at worst. In doing so, it has eroded the principle of fair notice beyond recognition and dangerously impaired the justification for criminal punishment that has for centuries been based on an individual’s intent to commit a wrongful act.”

While overcriminalization is often seen as a federal problem, it infects states and cities, too. Recently the Wichita City Council passed a sign ordinance that has the characteristics of overcriminalization. A key provision is this: “The existence of a temporary sign in the right of way or on public property directing attention to a person is prima facie evidence that such person has caused the placement of such sign in the right of way or on public property.”

This means that the mere existence of a sign promoting a candidate being in the wrong place is evidence that the candidate is guilty of a crime. No matter how well a candidate trains staff and volunteers on proper sign placement, if a sign is in the wrong place, the candidate is presumed guilty. It’s difficult to defend against this presumption.

The National Association of Criminal Defense Lawyers has created a series of short videos that explain more about overcriminalization. The first, titled “Overcriminalization: Criminalizing the Everyday” is presented below, and additional titles may be viewed here.


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