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'Clean Up Government Act' sparks overcriminalization concerns

Introduced in July of this year, H.R. 2572, the Clean Up Government Act of 2011 passed through the House Judiciary Committee unanimously with the objective of among other things to "amend the federal criminal code to revise and expand prohibitions against bribery, theft of public money, and other public corruption offenses."

The bill has garnered bi-partisan support and the support of many good-government groups advocating for tougher anti-corruption efforts. And who could really argue against legislation aimed to curb public corruption? But while we hear justified support for the sentiment of taking a tough stance against corruption among public officials , it is important to consider the manner in which the problem is addressed.

In a written statement before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, Timothy O'Toole, attorney with Miller Chevalier and board member of the National Association of Criminal Defense Lawyers, articulated his concern with the criminal provisions of the proposed law which could create conflict and confusion.

The broader concern is the overcriminalization of conduct that may not comport with our traditional notions of criminal justice.

Timothy O'Toole describes it best in his opening argument of the aforementioned written statement,

But I am here today, as a practicing lawyer who is actively working in this area of the law, to remind the esteemed Members of this Subcommittee, and the general public, that we already have a very powerful set of federal laws that prevent and punish those public officials who trade on their public office for private gain. There are, in fact, over 20 federal statutes that are currently very effectively used by prosecutors to curtail suspected public corruption and fraud. These statutes impose stern punishments against those found guilty of these corruption offenses. I write to illustrate to you that H.R. 2572 represents a number of unnecessary changes to the law that will create additional confusion, cost, and potentially unintended consequences, while at the same time having no appreciable affect on curtailing public corruption.

In many ways, the proposal reflects a disturbing trend that we, along with organizations on the right and the left, have labeled overcriminalization--a public policy phenomenon that has drawn the attention of a growing number of groups including the Heritage Foundation, the Federalist Society, the ACLU, and Families Against Mandatory Minimums (FAMM). A variety of political, economic and corporate scandals have graced the front pages of our newspapers, and over the past 30 years, Congress has responded to the public‟s sense of outrage at these events by adopting more and more overlapping laws, often usurping areas that have been competently handled by state and local jurisdictions, ignoring legal safeguards such as criminal intent requirements that limit the criminal law to specific cases of criminal wrong-doing, and incrementally toughening the penalties without regard for cost or even any sense of normative justice. But as Justice Scalia recently noted, that trend must come to an end: "[W]e face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt."

There are over 4,450 federal crimes scattered throughout the 50 titles of the United States Code. In addition, it is estimated that there are at least 10,000, and quite possibly as many as 300,000, federal regulations that can be enforced criminally. The truth is no one, including our own government, has been able to provide an accurate count of how many criminal offenses exist in our federal code. This is not simply statistical curiosity, but a matter with serious consequences.

We will follow the progress of H.R. 2572 and continue to convey the concerns that the bill has raised with regard to overcriminalization.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.