Overcriminalization of Conduct, Federalization of Criminal Law, and the Exercise of Enforcement Discretion PDF Print E-mail

The tendency to create new federal crimes in the face of social crises is a study in misdirected intentions and misplaced effort.  Criminal law loses its particular deterrent effect when it is used to prohibit and punish conduct that merely involves negligence or bad judgment.  As of 2003, there were over 4,000 offenses that carried criminal penalties in the United States code.  Many of these do not punish conduct that is typically considered to be "criminal."  This is because an increasing number of statutes require that the culpable party have only general intent - in other words, that he or she acted "knowing" of the facts of the underlying conduct, but not necessarily with knowledge that he or she was breaking the law.  This is especially important as Congress criminalizes more and more conduct that involves regulatory violations and highly technical misconduct.  Vague criminal laws, coupled with an expanding list of federal crimes, can lead and have led to abuses by the executive branch in the exercise of its prosecutorial discretion.  

Summary of the ProblemThe overcriminalization of conduct that is not inherently wrong and the overfederalization of criminal law enforcement are two faces of the same problem:  The use of criminal sanctions is an attractive but ineffective solution for whatever crisis faces the American public, be it a surge in gang crime or a breakdown on Wall Street.  

      As the American Bar Association's Task Force on the Federalization of Crime observed in 1998, "So large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes."  As of 2003, there were over 4,000 offenses that carried criminal penalties in the United States Code.  In addition, it is estimated that there are at least 10,000, and possibly as many as 300,000, federal regulations that can be enforced criminally.  Despite Supreme Court cases in the last 15 years that have cautioned against the federal assumption of plenary police power, Congress' penchant for introducing new criminal legislation appears to be undiminished.

      Given the sheer number of these criminal prohibitions, it follows that a low percentage of them require what jurists have traditionally considered to be "criminal intent."  Rather, federal statutes provide for more than 100 types of mens rea.  As a prominent casebook notes, "[e]ven those terms most frequently used in federal legislation-‘knowing' and ‘willful'-do not have one invariable meaning.  ... Another layer of difficulty is attributable to the fact that Congress may impose one mens rea requirement upon certain elements of the offense and a different level of mens rea, or no mens rea at all, with respect to other elements."  The erosion of mens rea is especially problematic in the white collar arena, where potential defendants often have little (or no) notice that the conduct in which they have engaged is unlawful, much less criminal. 

      In the 1970s and into the early 1980s, Congress produced several iterations of a comprehensive and cohesive federal criminal code.  After literally hundreds of markups and passage through the Senate, the effort finally died.  This failure was attributable largely to the product's lack of support from major stakeholders (such as the ACLU, which opposed the bill's introduction of sentences that were appealable by the government) and its evolution into a stalking horse of new criminal provisions.  Throughout the 1990s, then Chief Justice William Rehnquist advocated a five-point, limited basis for federal criminal jurisdiction in order to ease the burden on federal courts and return plenary police power to the states.  Endorsed by the federal judicial conference, these principles state that the exercise of federal criminal jurisdiction is appropriate in the following cases:

1. offenses against the federal government or its inherent interests; 

2. criminal activity with substantial multi-state or international aspects;  

3. criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise;  

4. serious high level or widespread state or local government corruption; and criminal cases raising highly sensitive local issues.

      The ABA followed suit in 1998 with its own nearly identical recommendations for curbing the excessive costs of overcriminalization and overfederalization, and preventing the further diminishment of criminal enforcement.

      Currently, there is a groundswell of unprecedented, bi-partisan support for stanching this trend to pass increasingly broad, vague, and unnecessary criminal laws.  Much of the support has its roots in the business and bar community's shared concern about the vast amount of discretion that vague criminal laws give to the executive branch.  For the past four years, a coalition of groups that includes the ABA, the US Chamber of Commerce, the ACLU, NACDL, and the Association of Corporate Counsel, has pressured the Department of Justice to curb its own excesses in investigating corporate crime.  Because businesses in the federal system are automatically held liable for the criminal acts of their employees - regardless of how high up the wrongdoing went and who, if anyone, knew of it - the executive has tremendous leverage when it threatens to indict an entire business.  When coupled with the erosion of mens rea, this makes crimes such as "honest services" mail fraud, environmental regulatory offenses, and any law that requires only a "knowing" violation, easy to prove.  As a result, the executive branch now exercises unprecedented leverage over individual employees and their employers alike. Until recently, DOJ exercised this leverage through officially endorsing practices that included threatening a business with indictment unless it turned over "culpable" employees (with no opportunity for the employees to assert their constitutional rights) and refused to pay employees' legal costs.  Because of successful lobbying by this large coalition (note:  unclear who makes up this coalition), DOJ retracted some of these policies.

      However, it is an increasingly commonly held view that fewer federal crimes, tighter mens rea requirements, and more Congressional oversight over executive branch discretion is necessary to obviate the abuses in law enforcement that are otherwise prone to occur. 

Last Updated on Tuesday, 11 November 2008 16:29
For more information, please read about us or contact Matthew Allee at the Constitution Project, 202-580-6922.