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Whose Intent is it Anyway? The Case for State Flexibility in Criminal Law

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Vinny Sidhu
Legal Intern, Manhattan Institute's Center for Legal Policy

Lately, the issue of federal "overcriminalization" has taken center stage in our national discourse. Chad Readler, a partner at Jones Day in Columbus, Ohio, recently penned an op-ed for the Cleveland Plain Dealer in which he detailed the detrimental effects of federal overcriminalization on the states' abilities to fashion their criminal codes towards the normative consensus reached within their local communities. He cites the example of Ohio:

Federal overcriminalization, however, presents a second concern: It undermines Ohio's ability to enforce its own values and interests. The criminal code is, at bottom, a reflection of community norms. As Ohioans, we may prefer not to criminalize some conduct or to provide for less significant punishment for that conduct than does federal law. But Ohio's choices matter little when federal prosecutors can also prosecute conduct of a largely local nature.

Within this context, Mr. Readler then highlights the dangers of setting potentially-harmful precedents in state criminal law:

A bill pending in the Ohio House illustrates a third concern: Federal law can provide an ill-advised model for Ohio to follow. The federal False Claims Act (FCA) allows for the recovery of money defrauded from the federal government. While the FCA technically provides for civil liability, it is considered a quasi-criminal law because the penalties it imposes can far exceed any damages caused by the fraud. To prove liability, the government need only prove that a person submitted information to the government "in reckless disregard of the truth or falsity of the information"; it need not prove that the person intended to defraud the government.

No one condones intentional fraud. And the FCA, to be sure, has recovered taxpayer money from intentional fraudsters. But the statute has also come under criticism for ensnaring people who may not have entirely understood certain federal rules or regulations.

Ultimately, Mr. Readler is speaking to the very nature of our country's constitutional structure on two distinct levels; specifically, 1) the historic delegation of criminal law to the states as a police power, and 2) the practicality inherent in allowing the states to cater their laws towards the ideological sentiments of their communities. Without the former, the nation's federalist structure gets overwhelmed by an ever-increasing federal criminal code; without the latter, the states wither as the country's flexible and autonomous "laboratories of democracy." Mr. Readler has certainly shed light on a national issue of the utmost importance.

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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.