Bench Memos

Some Light Holiday Reading on Overcriminalization (Really!)

Just this week, the Federalist Society’s publication Engage published an excellent article by Hon. Ronald A. Cass called Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law. It’s an interesting treatment of the distinctions between criminal law enforcement and administrative law and their implications for overcriminalization reform. The paper is well worth reading.

From the conclusion:

Growing numbers of federal crimes, driven largely by the immense number of administrative rules that are criminally enforceable, have created a serious problem for anyone committed to the rule of law.  The typical prosecution may be justified and the typical prosecutor may be well behaved, but changes in the law have increased the risk of prosecutors bringing charges against people who have done nothing wrong, or nothing seriously wrong—nothing that traditionally would have been thought of as criminal—and selecting the number and nature of charges in a way that puts extraordinary pressure on defendants to agree to a plea bargain. 

The morphing of administrative law doctrines (which are relatively deferential to exercises of government power) with criminal law (which long was characterized by skepticism of assertions of government power and by rules designed to constrain that power) has reduced historic protections for criminal defendants.  It particularly has diminished prospects that defendants will be protected against charges of violating rules that are neither self-evident nor matters a given individual reasonably should be expected to know, the requirement of “fair notice” that repeatedly has been acclaimed as an element of due process.

Courts do not need to require actual knowledge of criminality to make the “fair notice” concept meaningful, but they do need to recognize that without knowledge or culpable ignorance “fair notice” is a myth.  By the same token, Congress should place clear limits on the power it gives administrative officials to create criminally-enforceable rules.  However much observers may applaud a given use of administrative rulemaking and criminal enforcement, it is critical to understand the growing risk to liberty from giving officials unchecked power to use the criminal law by selecting from an open field of potential charges as they see fit.  Attention to small risks—not complacency that they have yet to materialize—is the legacy of aspiring to be the “city on the hill” envisioned by those who lay the foundations for our nation.

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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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