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MALCOLM/REIMER: Over-criminalization undermines respect for legal system

- - Wednesday, December 11, 2013

ANALYSIS/OPINION:

Despite some of the sharpest political divisions in memory, Congress managed to mount one noteworthy bipartisan effort this year. Since May, the Over-criminalization Task Force, comprising five Republicans and five Democrats from the House Judiciary Committee, has worked diligently to develop recommendations that will address some of the fundamental problems plaguing the federal criminal justice system. The task force has been analyzing worrisome trends such as:

the dramatic expansion of the size and scope of the federal criminal code over the past few decades;

the proclivity of Congress to enact offenses without a mens rea — "guilty mind" — requirement, which leaves people vulnerable to being sent to jail for doing something they had no idea was a crime;

the tendency to pass laws that are so vaguely worded that the limit of their reach is constrained only by the charging prosecutor's creativity;

and the ever-increasing labyrinth of federal regulatory crimes.

At four public hearings convened earlier this year, task force members heard testimony from people representing a wide array of professions and ideologies — from professors and lawyers to everyday citizens who have been unfairly prosecuted. The witnesses all agreed on one thing: Legislation is needed to ensure that criminal laws and regulations are interpreted to adequately protect against unjust convictions for engaging in activities that no reasonable person would assume is against the law.

Several practical reform measures were raised during the hearings. Among these are enacting laws that would require federal courts to read a meaningful mens rea requirement into any criminal offense that lacks one (unless Congress clearly intended otherwise); direct courts to apply any existing mens rea term in a criminal offense to each material element of the offense (similar to subsection 2.02(4) of the American Law Institute's Model Penal Code); and codify a judicial rule of interpretation that requires courts to construe ambiguous criminal laws in favor of the accused.

Such reforms would embody fundamental fairness — an essential element of good government.

Since its creation in May, the congressional task force has remained faithful to its mandate, while maintaining the bipartisan unity that spurred its creation. The work of the task force, however, is not done. It has yet to address critical issues that fuel, or result from, the over-criminalization phenomenon. Among these are the ever-increasing collateral consequences of conviction; the impact of harsh mandatory prison sentences that sometimes bear little relationship to actual culpability or harm; and the societal costs of over-federalization. While the reforms previously mentioned are critical components of any solution to the over-criminalization problem, they are not the only solutions.

It is imperative that the task force attack the problem as broadly as possible. The answer to every societal ill should not be more criminal laws and harsher sentences. Moreover, over-criminalization can ruin the lives of morally blameless people and undermine the public's respect for the integrity and fairness of our criminal justice system.

Unfortunately, authorization for the Over-criminalization Task Force expired Nov. 30. It would be a shame to let such a promising start go for naught. The House Judiciary Committee should reauthorize the task force so that it might continue with its important work.

Reviving the panel and its work would send two sorely needed messages. One, that Washington seeks to protect innocent people by restoring justice to the federal criminal justice system and applying common sense and proportionality when punishing those who are blameworthy under the law. And two, that it is still possible for members of Congress to cross the partisan divide and act meaningfully to address a problem that affects us all.

John G. Malcolm is the director of the Edwin Meese III Center for Legal and Judicial Studies and the Gilbertson senior legal fellow at the Heritage Foundation. Norman L. Reimer is the executive director of the National Association of Criminal Defense Lawyers.