Results matching “overcriminalization”


by Jarrett Dieterle, former legal intern at Manhattan Institute's Center for Legal Policy, and author of The Lacey Act: A Case Study in the Mechanics of Overcriminalization published in the Georgetown Law Journal

What if I told you that the U.S. Department of Justice could prosecute a renowned American company for exporting wood in violation of a foreign country's laws? To many Americans, such a tale would be unbelievable. How, they might ask, could violating a foreign law make one susceptible to a felony conviction in the United States?

The answer is the Lacey Act, which was the proximate cause of the now-famous Gibson Guitar raid that occurred in the summer of 2011 (when the company was accused of exporting wood for its guitars in violation of the laws of India). Under the Lacey Act, it is illegal to "import, export, transport, sell, receive, acquire, or purchase" any plant or type of wildlife that was "taken, possessed, transported, or sold" in violation of a foreign or domestic law. Penalties for violating the Lacey Act can lead to draconian punishments--including felony convictions, jail time, large fines, and asset forfeiture.

Legal scholars like Paul Larkin of the Heritage Foundation have long highlighted the Lacey Act as an example of the concept of "overcriminalization" (a topic well-covered on Point of Law, as well). Overcriminalization means criminalizing conduct that most people do not view as inherently criminal or blameworthy. Although the Lacey Act's present day form has been extensively analyzed, little has been written about the Lacey Act's long and tortured history. In other words, we know a lot about why the Lacey Act criminalizes conduct that is often innocuous, but we know much less about how the law evolved to become a poster child for overcriminalization.

With this in mind, I decided to retrace the history of the Lacey Act and explore how the Act has changed over time. The result of this effort was recently published in the Georgetown Law Journal, and it turned up some fascinating trends about how overcriminalization occurs in modern, democratic societies.

Opposing FCPA Overcriminalization - PointOfLaw Forum

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

As the overcriminalization problem has garnered more and more attention, the calls for reform have become increasingly audible in various aspects of federal, state, and local governments. The latest example comes to us from the Texas Public Policy Foundation. Vikrant Reddy, TPPF's Senior Policy Analyst for the Center for Effective Justice, has just released a report detailing salient changes that should be made to the Foreign Corrupt Practices Act to make it more reliable and efficient. Ostensibly, the purpose of the statute is to minimize U.S. complicity in international corruption, but its ancillary effects tend to stifle any beneficial effects of the additional regulation:

The act is emblematic of all the worst aspects of creeping federal overcriminalization, the tendency of Congress to use criminal law to regulate behavior not traditionally considered criminal. The FCPA's most important terms are vague and provide limited guidance for potential defendants; it is enforced in a way that limits critical mens rea protections; and the law does not provide for a "compliance defense" that would allow corporations to demonstrate that violations were a result of rogue employees, rather than inadequate compliance regimes.

The general problem stems from the fact that the premise of the legislation does not account for the creation of a skewed incentive structure. In theory, the FCPA will deter U.S. corporations from using potentially illegitimate means to court business in countries that are deemed "high risk" by using the threat of exorbitant fines and penalties. In order for this linear-style logic to hold, legislators either did not consider the negative externalities involved, or simply deemed them minimal in relation to the benefits of the legislation. Either way, the FCPA has proven to cause significant problems in terms of increasing the uncertainty involved in a given investment, and thus diverting U.S. resources from economically and socially productive uses:

Ironically, in fact, there is evidence that the FCPA has had the counter-productive effect of discouraging American firms from investing in impoverished nations. There is also evidence that the FCPA has stunted the growth of U.S. companies by forcing them to maintain costly compliance regimes. Ironically, these regimes may not even be useful becasue prosecution ultimately depends on how a particular U.S. Attorney will choose to interpret a particular term.

An improved piece of legislation would take into account these proven negative effects, while maintaining the core corruption-preventing purpose of the FCPA.

In other overcrim news, the Manhattan Institute's Center for Legal Policy will soon be releasing a report detailing the changing nature of Deferred and Non-Prosecution Agreements, especially in relation to the increasing number of agreements being utilized by the DOJ and, recently, the SEC. It will also examine the scope and adequacy of judicial review over these agreements.


by William G. Otis

The reach of criminal law to enforce the regulatory state poses serious questions. Regulatory crimes tend to be "strict liability" offenses. That is, they do not require that that the defendant be found to have had bad intent in order to convict and punish him.

This is a relatively new and potentially ominous development. The Founders contemplated criminal punishment for, roughly, "bad actors" -- those who do something a person with common sense and ordinary intelligence would intuitively think of as criminal. Generally, criminal behavior up to now has been defined by people who either don't control their temper; want to make a quick buck; or range from extremely non-empathetic to malevolent.

Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. For the law to accommodate this raises a host of problems. One of them is lack of accountability: The regulator does not face the voters, and is often hidden behind layers of bureaucracy. Another is lack of democratic legitimacy: Regulators simply do not have the mandate conferred by getting elected.

To partly counteract these problems, some have suggested an updated version of the mistake of law defense. Under this version, it would be an affirmative defense if the defendant did not know, and a reasonable person in the defendant's position would not have known, that the defendant's conduct was a crime.

Such a proposal has obvious appeal for the reasons outlined. Yet caution is in order, because the on-the-ground reality will look different. What will happen is that the defendant will preemptively go to his brother-in-law (the one with a law degree) and present some sanitized version of his plan, in order to inveigle the newly-employed "counsel" to say, "Well it might be close to the line, but I guess it's OK."

When the defendant goes to trial -- having swindled his way to millions through some novel, improvised, now-you-see-it-and-now-you-don't "financial product" -- he'll use the mistake of law defense to insist, "I sought legal advice and was told it wasn't any worse than close to the line. I might have made a mistake, but I asked and my lawyer said it was OK."

More generally, once we allow defendants to turn the trial into a contest about the state of their legal knowledge, we have invited a morass. State-of-mind defenses are already out of control; state of legal knowledge defenses will be, if anything, worse. Even to combat the dangers of regulators-run-wild, we should be cautious before we expand them.


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The traditional common-law principle of "Ignorantia juris non excusat,"--Latin for "ignorance of the law" does not excuse--prevented a criminal defendant from escaping liability by claiming that he was unaware that his conduct was unlawful. When most crimes were malum in se--meaning inherently wrong according to the generally accepted moral code--the concept of "ignorance is no excuse" went unchallenged. That was all before the phenomenon of overcriminalization, before criminal codes and regulatory provisions were flooded with new criminal offenses, many of which were vague, ambiguous, duplicative and well-beyond the scope of the traditional common-law-based criminal justice system.

Now in the face of a new reality, policy experts and legal scholars have been working on solutions to curb overcriminalization and reign in the unwieldy proliferation of criminal laws. Policy makers have met those efforts with interest; the House of Representatives formed a special task force on the question earlier this year. Among the many proposals being considered to deal with the alarming trend is a reversal of this age-old principle that "ignorance of the law is no excuse." What has been proposed by many advocates is a new "mistake of law" defense which would for the first time allow a criminal defendant to make the case that he did not know that his conduct was against the law and that no reasonable person in his position would know. This drastic departure from the "ignorance of the law" principle has alarmed many experts who, while acknowledging the threat of overcriminalization, worry that a mistake of law defense would create its own host of serious problems.

To advocate in favor of the "mistake of law defense", we're thrilled to welcome Paul Larkin, senior legal research fellow at the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies. Before joining Heritage, Larkin held various positions with the federal government in Washington, D.C. At the U.S. Department of Justice from 1984 to 1993, Larkin served as an assistant to the solicitor general and as an attorney in the criminal division's section on organized crime and racketeering. He argued 27 cases before the U.S. Supreme Court. Additionally, Paul authored several legal memoranda which outlined the case for the Mistake of Law Defense generally and also specified the elements of that prospective defense.

Opposite Larkin, we are happy to welcome Georgetown Law adjunct professor William G. Otis, a former chief of the Appellate Division at the US Attorney's Office for the Eastern District of Virginia, counselor to the administrator with the Drug Enforcement Administration and special counsel to President George H. W. Bush.

We hope you will visit back over the ensuing days to see what our distinguished participants have to say, in what promises to be a fascinating discussion.

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by William G. Otis

The reach of criminal law to enforce the regulatory state poses serious questions. Regulatory crimes tend to be "strict liability" offenses. That is, they do not require that that the defendant be found to have had bad intent in order to convict and punish him.

This is a relatively new and potentially ominous development. The Founders contemplated criminal punishment for, roughly, "bad actors" -- those who do something a person with common sense and ordinary intelligence would intuitively think of as criminal. Generally, criminal behavior up to now has been defined by people who either don't control their temper; want to make a quick buck; or range from extremely non-empathetic to malevolent.


by Isaac Gorodetski

The traditional common-law principle of "Ignorantia juris non excusat,"--Latin for "ignorance of the law" does not excuse--prevented a criminal defendant from escaping liability by claiming that he was unaware that his conduct was unlawful. When most crimes were malum in se--meaning inherently wrong according to the generally accepted moral code--the concept of "ignorance is no excuse" went unchallenged. That was all before the phenomenon of overcriminalization, before criminal codes and regulatory provisions were flooded with new criminal offenses, many of which were vague, ambiguous, duplicative and well-beyond the scope of the traditional common-law-based criminal justice system.

Teen Sexting, Youthful Mistake or Felony? - PointOfLaw Forum

Sexting, the act of sending sexually explicit messages or pictures via text message is not criminal, and rightly so. What consenting adults choose to text one another should be of little concern to society or lawmakers with limited and clearly defined exceptions such as national security and criminal investigations. However, when these sexually explicit messages are exchanged between minors it becomes an issue of serious concern ripe for legislative action and the inevitable overcriminalization that follows.

Although overcriminalization has many causes it often rears its ugly head in the form of hastily enacted legislation that is a direct response to current events. In the past few years this troubling pattern has played out in response to teen sexting. The impulse behind these laws is usually some form of 'if there is a problem, make it a crime.' Unfortunately laws passed in this fashion are rarely well thought out, effective, or reasonable. These problems are further exacerbated when the subject matter involves technology and emerging issues like sexting. Lawmakers rarely take the time to understand the issues because political concerns demand immediate action. The result is broad laws that criminally punish acts that don't amount to criminal behavior.

Like all potentially criminal activity instances of teen sexting fall into a range, from not criminal to clearly criminal. There have been wildly publicized occurrences of sexting on both ends of the spectrum, from two teens mutually agreeing to share pictures of one another to large scale trading of images between dozens of people and the malicious distribution of images against the will of the image's subject. The existing laws used to punish minor sexting as well as those laws newly created in response to its growing prevalence are classic examples of overcriminalization. The problem is the over the top responses to small scale instances of teen sexting and the writing of laws that target all sexting as if it is the most heinous version of the crime.

The first type of overreaction usually involves the use of existing child pornography distribution and possession laws to punish one-off instances of sexting. Prosecutors go after the subject of the image for distribution, the recipient for possession and in one recent case the assistant principal who discovered the image and retained a copy as evidence. Overzealous prosecutors push for maximum penalties, unsurprising given the subject matter, and rigid laws that were not designed for this type of behavior are applied. The result of which is disproportionate punishment in the form of branding teenagers as felons and sex offenders.

The second type of overreaction necessarily follows from the first. Feeling the political pressure to act and seeing that existing laws don't appropriately deal with these behaviors lawmakers enact overreaching and overbroad statutes to punish all forms of minor sexting as if they are worst offenses. Instead of measured and deliberate legislative action the public gets rush jobs that make even first time offenses felonies. Once again making sex offenders and felons out of teens that could well have been dealt with through diversion, fines and counseling.

None of this is to say that these issues are not of serious concern to the community or that they do not merit a legislative response. But as with all issues of overcriminalization careful attention must be paid to the breadth of the statutes enacted and the severity of the penalties that are mandated. A thoughtful and proportionate response is required in this case given the seriousness of the issue. The 'it's a problem, make it a crime' mentality simply won't cut it here.

Luckily for those teens who find themselves on the wrong side of these laws there are hopeful signs coming from the states. Several legislatures have revised their sexting laws, or are working on proposed legislation that reduce criminal penalties for first time offenders, or employ non-criminal punishments for less severe instances of sexting. However the overall trend is still towards passing more of these laws, and the majority are much further reaching than necessary.

New Podcast: Federal overcriminalization hurts Ohioans - PointOfLaw Forum

James Copland discusses the effects of over-criminalization and the over-federalization of the criminal law on Ohio with Chad Readler of Jones Day as a follow up to Chad's op-ed on the same topic.

The Manhattan Institute's Center for Legal Policy will continue tracking the impact of these alarming criminal-law trends in Ohio and other states in an effort to raise awareness of this grave threat to individual liberty and states' rights.


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.


The Heritage Foundation's The Foundry blog reported today that the House Committee on the Judiciary created the bipartisan Over-Criminalization Task Force of 2013. The goal of the task force is to "conduct hearings and investigations relating to over-criminalization issues within the Committee." The task force, will be chaired by Representative James Sensenbrenner (R-WI) and will consist of five Democrats and five Republicans.

The formation of this task force publicizes both the acknowledgment by Congress that the problem of overcriminalization is real and that the House Judiciary is willing to take active steps to address the alarming criminal law trends which depart from traditional common law norms and threaten individual and economic liberty.

Aaron Swartz and overcriminalization - PointOfLaw Forum

The suicide of Aaron Swartz on the second anniversary of his arrest has drawn attention to the problem of overcriminalization. Jonathan Blanks and Scott Greenfield have good summaries noting that Swartz is hardly unique that are worth reading in addition to the more personal Larry Lessig post you have probably already seen.

Update: see also Orin Kerr for a perspective on the underlying law, Walter Olson with a roundup, and my 2008 American Spectator article on prosecutorial overreaching. Kerr's legal analysis I don't think fairly takes into account the "hacker ethos" of MIT that encourages the sort of rebellious computer activity Swartz engaged in, as bad as it can be made to look on paper. Computer culture can look more sinister than it is to the humorless outside of it; I once saw a lawyer identify Overlawyered's 404 page joke as evidence of a conspiracy either out of ignorance or cynical disingenuousness. But try explaining 404 pages to a judge (or, worse, to a $500/hour attorney).

And if you're an attorney who uses PACER, you can bring the world a little bit closer to Swartz's ideal (and save you or your clients a bit of money) by installing RECAP on your Firefox browser. Right now PACER, which recently raised its rates 25%, generates a $100 million surplus selling Americans electronic access to publicly available litigation documents.

Overcriminalization and CEO pay - PointOfLaw Forum

An under-studied phenomenon: to what extent is higher CEO pay a result of the increased frequency with which prosecutors destroy the lives of CEOs by criminalizing unsuccessful business decisions or arbitrarily retroactively selectively criminalizing common business practices (compare Broadcom and Apple on question of options backdating)? Economic theory would predict that increased chances of having your wealth stripped and being sent to prison for years would require higher compensation ex ante. After Larry Ribstein's death, I'm not aware of anyone considering this at all. Today's DOJ has been surprisingly restrained in not prosecuting executives for foolish investments in the real estate bubble, and are largely being criticized, rather than praised, for their forebearance. Which academic is on the criminalization-of-risk beat these days?

Overcriminalization sale on Amazon - PointOfLaw Forum

Harvey Silverglate's Three Felonies A Day: How the Feds Target the Innocent is available for $1.99 on Kindle this month. Read some of our earlier coverage of Silverglate on criminalization: February 2008; June 2010; August 2011.

Overcriminalization videos - PointOfLaw Forum

NACDL has a page of videos about overcriminalization, featuring prominent people from both sides of the aisle.

Partners in Crime: Overcriminalization and Overfederalization - PointOfLaw Forum

Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

With attention from the likes of George Will and the Wall Street Journal, the "whale whistling" story has shed light on the concept of overcriminalization. [POL]. By now the facts of Nancy Black's predicament are well-known: She is being charged for making a "false statement" concerning her whale-watching activities to federal officials under Title 18, Sec. 1001 of the U.S. Code. This statute has proven quite useful to the feds, especially when they are unable to pin any other charges on a person they suspect of wrongdoing (like Ms. Black, who was originally under investigation for whale harassment).

Could it be that Sec. 1001 - an already overbroad statute - could be getting even broader? Lost in the obsession over NFIB v. Sebelius at the end of the Supreme Court's recent term was the Court's denial of certiorari in King v. United States, a case involving Sec. 1001. In King, the Ninth Circuit ruled that an Idaho rancher who lied to state officials could face federal criminal liability.

The [Ninth Circuit] wrote that "King lied to Klimes, one of the [Idaho] investigators, in order to defeat the investigation. A willful injection of fluid into a deep well without a permit from the State of Idaho is a federal crime under the Safe Drinking Water Act. Therefore, King made a false statement in a 'matter within the jurisdiction' of the United States." The Court's argument, in other words, was the essence of the overfederalization: 'You violated a state law and you lied about it to a state official. That's a federal offense.' [rightoncrime.com].

An amicus brief was filed in the case by a broad coalition of organizations (from the Cato Institute to the National Association of Criminal Defense Lawyers), noting that before the year 1984, Sec. 1001 was only used when false statements were made to federal officials; since then, however, it has been extended to create federal criminal liability for false statements made to state officials as well.

The trend toward more federal criminal liability - dubbed "overfederalization" of crime - is not limited to Sec. 1001. In fact, stories abound of individuals becoming ensnared in abstruse and obscure federal laws - and even facing jail time as a result. [Previously on POL]. In fact, just yesterday, the Heritage Foundation highlighted an effort to pass another redundant federal criminal law:

The SAFE DOSES Act, which just passed the House, makes stealing medical equipment a federal crime punishable by up to 30 years in prison and a $1,000,000 fine.


There is no doubt that conduct of the kind mentioned in the SAFE DOSES Act is wrong and should be punished criminally. But does it need to be prosecuted on the federal level? Are the state laws governing the crimes of theft, burglary, and larceny inadequate to address the crime of stealing medical equipment?

The answer is no. All 50 states already have laws under which they can prosecute the misconduct covered in the SAFE DOSES Act. In fact, the federal government does, too.

As the Heritage piece alludes to (but does not outright say), the SAFE DOSES Act is deficit neutral and thus provides Congress with an opportunity to pass something during these budget-strapped times. It also gives congressmen the chance to pose as tough on crime. The losers are average citizens, facing the Leviathan that is our criminal code.

Gibson Guitars settles - PointOfLaw Forum

The guitar-maker, a living example of overcriminalization after a raid and threatened felony convictions for executives over technical violations of the Lacey Act, got an offer too good to refuse: a criminal enforcement agreement of a $300,000 fine, forfeiture of about that much worth of ebony wood, and a $50,000 contribution to the U.S. National Fish and Wildlife Foundation. [Reuters]

This is obviously a good deal for Gibson: they would have spent at least that much money on lawyers defending themselves, their executives are no longer being hassled, and there is no longer a worry of prison time.

Less obvious is that it is a good deal for abusive government prosecutors and the Obama administration: Gibson was planning on setting up camp at the RNC to promote the problem of overcriminalization, and now their arguments have less force. Though the settlement is plainly a nuisance settlement (the government surely spent more than $600,000 bringing this case), Gibson makes admissions that it "failed to act on information that the Madagascar ebony it was purchasing may have violated laws intended to limit over-harvesting and conserve valuable wood species from Madagascar," and the government can pretend that it actually did something to protect the environment rather than just enforcing an arbitrary law promoted by local industry to eliminate competition from imports. It is worrisome that the very vocal Gibson Chief Executive Officer Henry Juszkiewicz has had no comment, suggesting that one set of lawyers or the other have silenced him. But the problem of overcriminalization remains, and the government's awesome prosecutorial power means that it can coerce criminal enforcement agreements that smear the victims just enough to preclude them from being effective voices against prosecutorial abuse.

Take, for example, the recent $3 billion fine paid by GlaxoSmithKline. Gosh, with so much money paid, GSK must have done something wrong. Except the government's remedy for the most technical of violations is debarment, a death penalty for pharmaceutical manufacturers. The government holds all the cards here; even if the company is entirely innocent and there's only a 5% chance of losing, a defendant drug company is going settle for whatever the government asks for, because the consequences of fighting and losing are essentially bankruptcy--and I'm not aware of anyone who thinks courts get it right 95% of the time. Meanwhile the government attorneys have every incentive to take advantage of this dynamic to promote their careers. The charges against GSK include complaints that low-level sales reps provided truthful information to doctors, just outside the scope of FDA approval. Unfortunately, no defendant is willing to bet the company on a First Amendment challenge. Manufacturers are afraid to speak out for fear of attracting adverse government attention. So we're all worse off because of the government's ban on truthful speech by certain commercial actors, and there's no political constituency to raise it because of the mud thrown on the victims because the parties agree to characterize the conduct as "fraud."

Overcriminalization, the comic - PointOfLaw Forum

Nathaniel Burney's comic about overcriminalization is a nice summary for those unfamiliar with the issue, but it actually understates the problem, because it doesn't even mention the "responsible corporate officer" doctrine, whereby an executive is not just responsible for knowing thousands of arbitrary laws, but ensuring that his employees aren't violating these thousands of arbitrary laws—with the concomitant cost to investment and job creation.

Gibson Guitar CEO on overcriminalizing businesses - PointOfLaw Forum

Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

Last August, federal agents descended upon the Gibson Guitar Co. factory in Tennessee. The agents reportedly seized 100 guitars and sent workers home for the day - costing the company an estimated $2-$3 million in products and lost productivity.

The justification for the invasion? The feds were acting under a law that many Americans likely have never heard of called the Lacey Act. Originally passed in 1900, the Lacey Act was intended to clamp down on illegal poaching of wildlife. The law has undergone several amendments and now is being used by the feds to target companies that import products made from trees harvested abroad (Gibson's guitar fingerboards are made from wood imported from India). The amendments also broadened the ranges of offenses under the act, making it a criminal offense to use any tree "taken, possessed, transported or sold in violation of any foreign law that protects or regulates plants."

In the Wall Street Journal, Gibson's CEO Henry Juszkiewicz uses his company's experience under the Lacey Act to argue against overcriminalization:

This is an overreach of government authority and indicative of the kinds of burdens the federal government routinely imposes on growing businesses. It also highlights a dangerous trend: an attempt to punish even paperwork errors with criminal charges and to regulate business activities through criminal law. Policy wonks call this "overcriminalization." I call it a job killer.

In America alone, there are over 4,000 federal criminal offenses. Under the Lacey Act, for instance, citizens and business owners also need to know--and predict how the U.S. federal government will interpret--the laws of nearly 200 other countries on the globe as well.

Many business owners have inadvertently broken obscure and highly technical foreign laws, landing them in prison for things like importing lobster tails in plastic rather than cardboard packaging (the violation of that Honduran law earned one man an eight-year prison sentence). Cases like this make it clear that the justice system has strayed from its constitutional purpose: stopping the real bad guys from bringing harm.

Juszkiewicz concludes by noting the destabilizing effect that overcriminalization can have on businesses, particularly in a tough economic environment:

Policy makers must stop criminalizing capitalism. This begins by stopping the practice of creating new criminal offenses, or wielding obscure foreign laws, as a method of regulating businesses.


Especially in a bearish economy, entrepreneurs need to be able to operate without the fear that inadvertently breaking an obscure regulation or unknowingly violating a foreign statute could shut down their company and land them or their employees in jail.

For more on the Lacey Act and overcriminalization, see these earlier Point of Law pieces.


Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

This past Wednesday, Manhattan Institute's Center for Legal Policy hosted a conference on the topic of overcriminalization, titled Overcriminalizing the Empire State? Criminal-Law Trends in New York and the Threat to Liberty and Commerce.

The conference featured a keynote speech by Hon. Robert S. Smith, an associate judge on the New York Court of Appeals. Judge Smith discussed, amongst other topics, potential overcriminalization in the realm of child pornography prosecutions; namely, should those who simply view - rather than produce or distribute - child pornography be held criminally responsible?

The event also included a panel discussion on overcriminalization trends in New York with Gerald Lefcourt (president of the Criminal Justice Foundation of the National Association of Criminal Defense Lawyers), James McGuire (former associate justice in the First Judicial Department of New York State's Appellate Division and former chief counsel for New York governor George Pataki), Mike Miller (former assistant DA in the Manhattan District Attorney's office), and Daniel Richman (the Paul K. Kellner Professor of Law at Columbia Law School). The panel was moderated by Manhattan Institute's own Jim Copland.

Thompson Reuters legal reporter Carlyn Kolker covered the event:

Among the theories that moderator James Copland of the Manhattan Institute posited during "Overcriminalizing the Empire State? Criminal-law Trends in New York and the Threat to Liberty and Commerce" is one that today's laws go beyond traditional notions of criminality (think rape, murder, assault) and into new territory, such as regulatory crimes. Many criminal laws suffer from vagueness, says Copland, which gives prosecutors broad discretion in how to apply them.

Against that backdrop, the panelists -- a collection of judges, practitioners and a professor -- delved into deep questions, such as whether New York state's Martin Act, which governs financial fraud cases, is overly broad. Has the law, which vests the state's attorney general with deep powers, been abused? Overly used? There were few hard conclusions.

The Center for Legal Policy will continue its efforts in the area of overcriminalization and plans to host more events on the subject in the future.

By Ted Frank

There is no question that former Democratic senator and presidential candidate John Edwards is a cad. After all, the man impregnated mistress Rielle Hunter while his loyal and popular wife, Elizabeth, was dying of cancer. He then repeatedly lied about it, to the point of orchestrating a scheme where a sycophantic aide -- the married Andrew Young -- agreed to represent himself as the father of the baby. Edwards' wealthiest supporters spent a million dollars engineering the cover-up.

All of this is getting hashed out in a federal trial in North Carolina as we speak. But does it make Edwards a criminal? Under prosecutors' theory of the case, Edwards broke the law because payments to Hunter and Young by his millionaire friends were "made for, among other purposes, the purpose of influencing any election for federal office" and thus should be considered a federal campaign contribution subject to $2,300 limits and disclosure requirements. Edwards' defense attorneys object: If that's the standard, what isn't a campaign contribution? (Could a campaign buy jewelry for a candidate's wife so she looks more presentable on the trail, influencing the election?)

One doesn't need to go very far down the slippery slope to think that prosecutors are acting arbitrarily. For example, journalist Edward Klein writes in a new book that the controversial Rev. Jeremiah Wright says he was offered $150,000 from one of President Barack Obama's "closest friends" to keep quiet during the 2008 presidential campaign. The Obama campaign was worried that Wright's anti-American sermons would alienate voters because of Obama's previous affiliation with Wright.

The government is prosecuting Edwards because campaign donors contributed money to Edwards' mistress to keep her quiet for the benefit of the campaign. Why is it not illegal for Obama's campaign donors to attempt to contribute money to Obama's reverend to keep him quiet? And Wright, it should be noted, did keep his mouth shut the last several months of the 2008 campaign.

Now perhaps the reverend is exaggerating or was misquoted; perhaps any offered payment to Wright was entirely independent of the Obama campaign (though the fact that Wright describes the process as going through multiple intermediaries suggests that someone wanted to hide the ball); if so, even under the Edwards prosecution's theory, there's nothing wrong there. But one would expect at least a grand jury investigation into the Obama-Wright relationship if the Edwards prosecution is legitimate.

Don't get me wrong. I disliked John Edwards before disliking John Edwards was cool. There is a certain poetic justice in seeing federal prosecutors dragging Edwards through the mud with salacious details -- a sex tape, a public-breast-baring tantrum by his scorned wife, Edwards' delusions of grandeur -- of questionable relevance to the criminal charges. After all, Edwards made his tens of millions through similar antics as a trial lawyer suing doctors and manufacturers with prejudicial appeals to juries' emotions.

But despite this, I am disturbed about the Department of Justice's prosecution of Edwards -- and you should be, too.

Part of the problem here is the very unworkability of campaign finance laws, which cannot possibly regulate every transaction related to an election without also trampling individual rights. Indeed, one of the reasons the Supreme Court decided as it did in the 5-4 Citizens United decision was because government attorneys were forced to admit that the over-broad campaign finance law gave the government the unconstitutional power to ban books and political pamphlets. The real controversy over the decision should be that four justices were all right with this.

But Edwards' case is also indicative of a larger problem: overcriminalization. There are thousands of highly technical criminal laws on the books, literally more than anyone has been able to accurately count. Making disputes over ambiguous regulations into federal criminal cases puts enormous and untrammeled power in the hands of public prosecutors. They can turn convictions of high-profile defendants into lucrative careers as millionaire lawyers in the private sector, creating a perverse incentive to run roughshod regardless of the merits.

What's happening to Edwards could happen to any of us -- and most of us can't afford to spend millions of dollars on lawyers to match the federal Leviathan's resources. Legislators should step in to ensure that federal criminal prosecutions do not happen in the absence of criminal intent. Otherwise, we risk ceding liberty entirely to the discretion and generosity of our friendly neighborhood prosecutor.


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