Bench Memos

A Rare Bipartisan Consensus In Favor of Overcriminalization Reform

The Wall Street Journal has published an editorial about a proposed change to the rules of the House of Representatives allowing the House Judiciary Committee to review legislation creating new criminal offenses. According to the Journal:

The 114th Congress convenes next week and Republicans are discussing major reform from taxes to immigration. A smaller but still refreshing change would give more careful review when creating new federal crimes.

On Monday the House Republican conference will debate the rules of the chamber, including a measure to refer proposed new criminal offenses to the House Judiciary Committee. This is supposed to be the routine practice, but Members can sidestep Judiciary by adding to an existing statute.  

This practice contributes to a problem that Justice Scalia noted in his 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.

The number of federal criminal laws has ballooned in recent decades, and, as Professor John Baker noted in this Federalist Society white paper, there has been a concurrent erosion in the quality of draftsmanship, the most concerning of which is the failure to include an adequate mental (mens rea) element for crimes. These trends have led to bipartisan calls for reform, forging a coalition of diverse organizations ranging from the Manhattan Institute and the Heritage Foundation on the right, to the National Association of Criminal Defense Lawyers and the Constitution Project on the left.   

Judiciary Committee chairman Bob Goodlatte and Crime Subcommittee chairman Jim Sensenbrenner deserve a lot of credit for turning their committee’s attention to this problem. They organized a task force to study the problem, a series of hearings, and now they are asking the full House to give them the rules they need to start turning the tide. I hope their colleagues will join them in addressing a serious but under-appreciated public-policy problem.  

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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