At the end of last month, the federal House of Representatives Subcommittee on Crime, Terrorism, and Homeland Security, which is a part of the Committee on the Judiciary, had a hearing on the over-criminalization of conduct and the over-federalization of criminal law. The importance of this issue cannot be overstated.
NACDL president John Wesley Hall submitted a statement regarding over-criminalization to the subcommittee. It focused on the absence of meaningful state-of-mind requirements in criminal laws, criminal punishment for the conduct of others, criminalization of business and economic activity, and mandatory minimums in sentencing.
This article by Paul Rosenzweig provides an instructive history of the elimination of criminal intent requirements in criminal laws. An original principle of our jurisprudence is that guilt should not be imputed to a person without any evil intention or consciousness of wrongdoing. Now, though, the law has evolved to criminalize even accidental conduct by turning thousands of administrative and civil regulations into strict liability crimes.
Similarly, through vicarious liability, people can be criminally prosecuted for the acts of other people, despite no personal neglect or even awareness. In one case discussed in the article linked above, a man was convicted for violating the Clean Water Act after an employee of a contractor he’d hired accidentally broke a pipeline with a backhoe, even though he had been off-duty and away from the site at the time of the accident. The employee wasn’t charged. The defendant hadn’t had any criminal intent or even personally caused the accident, but his conviction was affirmed on appeal.
Over-federalization is the alarming congressional trend of responding to every new crisis with new federal crimes. Last year there were more than 4,450 offenses carrying criminal penalties in the United States Code. In addition to those, at least 10,000 federal regulations can be enforced criminally. In this post we discussed the Fraud Enforcement and Recovery Act of 2009. At a hearing regarding this legislation, federal law enforcement witnesses explained that the existing federal laws were sufficient to punish criminal conduct associated with the financial crisis, but Congress enacted the new law, anyway. Federal criminal law abounds with redundancies such as this.
Because the federal judiciary is backlogged, the federal prisons are overflowing, the taxpayer costs are enormous, and, most importantly, the number of innocent individuals behind bars is growing, we hope that the magnitude of the testimony and written statements at this hearing stuck with the members of the House subcommittee on crime. Reforms to the broken federal criminal justice system are crucial.
Testimony and written statements from the hearing are available through the following links:
Hon. Richard Thornburgh
former U.S. Attorney General presently with K&L Gates LLP Washington, DC
Timothy F. Lynch
Director of the Project on Criminal Justice Cato Institute Washington, DC
Stephen A. Saltzburg
Professor George Washington University Law School Washington, DC
President Temple University Beasley School of Law Philadelphia, PA
John Wesley Hall