Bench Memos

The Overcriminalization Debate: A Primer

Second to military force, criminal law is the government’s most dangerous weapon. Recognizing its potential for misuse, the Western legal tradition has developed a wide variety of legal barriers to ensure that the punishments and stigmas of “criminal” are applied only to the people that deserve them. In this post, I hope to provide some historical background about some of the contemporary debates about overcriminalization and answer some of the most common questions.

What is “overcriminalization,” anyway?

The term “overcriminalization” usually refers to a constellation of problems with a particular criminal law, ranging from overbreadth to procedural fairness. Critiques based on concerns about overcriminalization will typically argue that the criminal law needs to be refined, narrowed, cabined, or limited in various ways that don’t detract from the central responsibility of criminal law to punish intentional blameworthy conduct.

Concerns about overcriminalization are not, however, the same as the view that criminal punishment is illegitimate or that criminals should get off with light sentences. Such an opinion would find itself at odds with most theories of criminal punishment and basic common sense. Obviously, dangerous criminals should be locked up as punishment, deterrent, and for the protection of the public. Most overcriminalization critiques, rather, are rooted in longstanding principles of the Western legal tradition, many of which go all the way back to Magna Carta.

What kind of problems and principles are you talking about?

Overcriminalization problems typically fall into five categories.

First, the criminal law can punish unintentional conduct. Without a guilty mind, or mens rea, a wrongful act has traditionally been treated as a civil tort rather than a crime. In recent years, however, Congress has increasingly defined crimes without a mens rea, forcing courts to either make one up or assume that Congress intended to punish unintentional acts with jail time.

Second, there are notice problems. The most typical is that a statute is too vague for anyone to know what it prohibits. You might think of this as the reciprocal of the commonplace principle that “ignorance of the law is no excuse” : If the judicial system is not going to accept “ignorance of law” as a defense, criminal laws ought to be sufficiently clear that diligent people can stay out of jail. This calls to mind Suetonius’ account of the Roman emperor Caligula who posted laws in very small letters and in a very narrow place to make the laws as difficult as possible to read. American law, it must be said, does not permit such shenanigans.

The Supreme Court addressed a notice problem in the 2010 case of Skilling v. United States, which raised a void-for-vagueness challenge to the federal “honest-services fraud” statute, which criminalizes schemes to defraud someone of “the intangible right of honest services.” Instead of invalidating the statute outright, though, the Supreme Court narrowed it by construction, declaring that it only covers deprivations of honest services through bribes or kickbacks supplied by a third party who had not been deceived. Only after this drastic narrowing did the Court conclude that the statute was not vague.

Third, and related to the second problem, there is overbreadth: a law may punish conduct that is innocent, socially beneficial, or harmless. This can happen in several ways. A law may be poorly drafted. A law may address a compelling problem at one moment in history, but still be on the books long after the original problem has subsided. The result is that prosecutors gain an enormous amount of discretion as they decide which cases to overlook and which to pursue.

Although prosecutorial discretion is typically used wisely, its sheer scope invites selective prosecutions based on factors like political alignment, popularity, and other non-legal factors. As FDR’s Attorney General (later Justice) Robert H. Jackson put it in a famous speech:

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. . . . It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

Sometimes legislators deliberately pass overbroad laws in an effort to look decisive. This problem arose recently in United States v. Yates (2015), which concerned an obstruction-of-justice law passed to address white-collar crime in the wake of the Enron scandal. There, though, the statute was not used to prosecute an executive who ordered destruction of financial documents or incriminating emails, but a commercial fisherman who tossed out a few undersized fish.

Fourth, there are due process questions. Although the phrase “due process” has been sorely abused by the courts in a substantive sense, procedural due process remains an important limitation on criminal punishment: Property and persons shouldn’t be seized without prior justification, nor may someone be punished without a lawful criminal conviction. These issues come up frequently as part of the discussion of civil asset forfeiture, which I hope to cover in more detail some other time.

Finally, and looming over all these other problems, the sheer scope of federal criminal law raises concerns about whether the Constitution’s allocation of powers between the states and the federal government has been upended. Expansion of the Commerce Clause and other modern trends in post-New Deal jurisprudence have enabled Congress to criminalize virtually anything with only the slightest of nods to interstate commerce, creating something that approximates a general police power. Add to that a ballooning number of federal regulations that regulate the details of modern life (many of which are hooked into criminal offenses) and you have a recipe for nearly unlimited federal power.

There are several more common overcriminalization critiques, such as concerns about excessive punishments and prison reform, but those involve normative discussions that are beyond the scope of this post.

Does all this really go back to Magna Carta? Really?

Not all, but you might be surprised at how much of the Magna Carta is relevant to today’s overcriminalization debate. If you recall, in 1215 a group of angry barons forced King John of England to write down the traditional rights of Englishmen and publish them with the royal seal, thus preventing the notoriously power- and revenue- hungry king from denying them. These rights, later published in a document that we know as Magna Carta, have been considered a definitive proclamation of the rights of Englishmen.

In fact, the drafters of the American Constitution relied closely on Magna Carta for inspiration as they sought to articulate the Bill of Rights. For instance, the Eighth Amendment’s prohibition on “excessive fines” is prefigured by Magna Carta’s article 14:

A freeman is not to be amerced [fined] for a small offence save in accordance with the manner of the offence, and for a major offence according to its magnitude, saving his sufficiency (salvo contenemento suo), and a merchant likewise, saving his merchandise, and any villain other than one of our own is to be amerced in the same way, saving his necessity (salvo waynagio) should he fall into our mercy, and none of the aforesaid amercements [fines] is to be imposed save by the oath of honest and law-worthy men of the neighbourhood. Earls and barons are not to be amerced save by their peers and only in accordance with the manner of their offence.

Some rights declared in Magna Carta raise important questions about the civil asset forfeiture debate (articles 22 and 29): 

We [the King] shall not hold the lands of those convicted of felony save for a year and a day, whereafter such land is to be restored to the lords of the fees.

* * *

No freeman is to be taken or imprisoned or disseised [dispossessed] of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

If you’re looking for a quick and accessible overview of Magna Carta’s influence on American law, I recommend the Library of Congress’s page about the famous document.

How can we fix these problems?

As the constitutionally-appointed deliberative body for lawmaking, Congress should take the lead on reform. Congress could define a default mens rea for all federal statutes, provide more concrete rules for interpreting unclear laws, and scale back criminalization of regulatory offenses. There are some indications that Congress is taking its responsibility seriously, such as the House’s creation in January of a new procedural rule ensuring that new crimes are reviewed by the Judiciary Committee. Hopefully this will improve the quality of new criminal offenses under federal law. Somewhat more ambitiously, Congress could undertake a comprehensive review of existing federal crimes and fix the problems more comprehensively.

Reform is primarily Congress’s responsibility, but the executive and the judicial branches have some tools, too. The Department of Justice, which initiates all federal prosecutions, could adopt prosecution guidelines that adopt a more cautious posture toward the problems identified above. New guidelines might, for instance, recommend that prosecutors avoid bringing cases where no mens rea must be proven, or that prosecutors not pursue prison time for crimes involving mere regulatory violations. Under Attorney General Eric Holder, the Department of Justice has already taken much more drastic action in the area of drug enforcement, so by comparison, any measures of the kind I’ve suggested would be quite modest.

The judicial branch, for its part, can faithfully apply the rule of lenity and void-for-vagueness doctrines, among other longstanding legal principles that constrain overcriminalization. If excessive judicial deference to Congress is the danger on one side, though, the danger on the other side is that judges begin substituting their idiosyncratic policy judgment s for Congress’s and judicially nullify fully constitutional laws.

The overcriminalization debate is quite complex, so I’ve necessarily skipped over numerous interesting topics in favor of broad strokes. Over the coming weeks and months, I will return to discuss some of these issues in more detail. Stay tuned!

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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