An Era of Overcriminalization

In 2011, fisherman John Yates was convicted of a felony under the Sarbanes-Oxley Act’s “anti-document-shredding” provision, punishable by up to 20 years in prison. What did Yates do to earn a conviction under a law intended to prevent white-collar criminals from defrauding investors and the public? He allegedly threw 3 of 72 fish he had caught back into the Gulf of Mexico. The National Oceanographic and Atmospheric Administration (NOAA) had found the fish to be under the legal minimum size. Earlier this year, the Supreme Court threw out Yates’ conviction.

Non-profit government accountability watchdog Cause of Action (COA) filed an amicus brief in 2014 supporting Yates. COA’s Executive Director Dan Epstein noted that the Supreme Court’s ruling in favor of Mr. Yates “protected individual rights against arbitrary government prosecutions.”

Though she disagreed with the Court’s decision, Justice Kagan laid plain the state of overcriminalization in her dissent, admitting that this law is “unfortunately not an outlier, but an emblem of deeper pathology in the federal criminal code.”

As the Charles Koch Institute’s senior research fellow Vikrant Reddy describes it, “Overcriminalization refers to the frequent use of criminal law—rather than civil law or administrative sanctions—to punish behavior that historically would not have been viewed as criminal.” A number of scholars, prosecutors, and activists have charted the growth of the federal criminal code, as well as regulations carrying criminal penalties, and have begun shining a light on its dismal impact on individual lives. The United States Code contains nearly 4,500 criminal offenses.

Since 2000, Congress has created an average of 56 new crimes annually. Further, modest estimates count over 300,000 regulations that carry criminal penalties. According to University of Notre Dame Law School professor Stephen Smith, overcriminalization and cases of “abusive prosecution … take place from coast to coast and have ruined the lives and reputations of people who were like other law-abiding citizens except for their misfortune of having attracted the attention of an overzealous federal agent or prosecutor.”

How is it possible that an otherwise law-abiding citizen would find himself facing a federal conviction?

  1. The growing volume of laws and regulations carrying criminal penalties makes it nearly impossible to discern what is and is not a crime.
  2. A crime requires both an actus reus (“guilty act”) and a mens rea (“guilty mind”). But many laws and regulations containing criminal penalties do not include an intent requirement, meaning individuals can be prosecuted for unknowingly breaking the law.
  3. Many modern criminal laws are written in vague and ambiguous language. Combined with the absence in the criminal code of a clear definition of a crime, the criminal implications of an act are often left open to interpretation by prosecutors, defense attorneys, and citizens.

According to James Copland, director of the Manhattan Institute’s Center for Legal Policy, “The proliferation of criminal statutes undermines a key principle: that folks know in advance what conduct could land them in prison.” Overcriminalization, he says, “has moved us from the rule of law to the rule of prosecutors. And if our laws are too voluminous—if we can go to jail for a mistake—our liberty is seriously compromised.”

Experts studying this unsettling phenomenon have proposed a number of solutions for protecting innocent citizens from overcriminalization. Georgetown Law professor John Baker advocates an “interpretive rule” that “reads in a mens rea where one is not literally provided in the statutory language.” Further, he proposes adding a definition of a “crime” to the criminal code.

Sidney Powell, a former federal prosecutor who criticized the increasing “politicization of the Justice Department and the use of prosecutors,” has called on Congress to introduce open-file discovery legislation requiring prosecutors to share all evidence and information with criminal defendants and mandating harsh penalties for those who fail to comply. She concludes that prisons “should be reserved for people who are a danger to the community. Those who are not dangerous could be engaged in more productive activities (at no or little cost to the taxpayers) while they pay restitution or their debt to society.”

In his amicus brief filed in the Yates case, Smith remarked: “I am glad the court finally seems to understand that ‘prosecutorial discretion’ is no panacea. Federal prosecutors routinely engage in overcharging—seeking disproportionately severe punishments which no reasonable person could believe warranted.” He left readers with a stern warning that “if proportionality of punishment and the rule of law are to mean anything, federal courts must take seriously their obligation to ensure that federal prosecutors are not exceeding the proper scope of their authority under criminal statutes.”

Curbing overcriminalization is vital for restoring the rule of law, whereby laws are applied consistently and justly, as opposed to rule by the discretion of prosecutors. The scholars mentioned above will discuss these issues in a panel on “Protecting the Innocent in an Era of Overcriminalization” at the Charles Koch Institute’s Summit on Public Safety and Human Dignity in New Orleans this November.

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