Justice Scalia to Congress: Stop Over-Criminalizing

by Carrie Severino

Several others have already noted it, but I would also like to note this quote from Justice Scalia’s dissent in Sykes v. United States:

We 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.

I hope Members take note of this rebuke and the growing coalition of groups, right and left, that are working to educate Congress and key opinion leaders about the problem of over-criminalization. If nothing else, perhaps the current political climate will make them more sensitive to the implications of over-criminalization for federalism, while the economic climate will make them more sensitive to the impact of allowing the criminal law to serve as just another form of regulation, stifling innovation and entrepreneurship.

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