August 27, 2014
There’s a looming problem in America’s federal criminal justice system that “gravely threatens the liberty of ordinary citizens. It’s called overcriminalization.
The problem, law professor Stephen Smith writes in a new Heritage report, “is not simply that too many criminal laws are on the books, but that they are poorly defined in ways that give unwarranted sweep to the criminal law, raising the danger of punishment absent or in excess of moral blameworthiness.”
Congress has created, on average, 56 new federal crimes each year since 2000. This has contributed injustices “that federal prosecutors have committed against people who had no reason to know their actions were wrongful, much less illegal.”
While awareness of this problem is growing, legislation to properly deal with the problem has yet to be written. Smith explains an alternative solution:
Fortunately, there is another path to reform in this area, one that does not depend on congressional action (or heroic self-restraint by federal prosecutors). This path to reform is informed statutory interpretation in federal criminal cases. Legislative overuse and prosecutorial misuse of the criminal sanction need not go unchecked, as many judges seem to think. The courts themselves have an important role in defining crimes, a role that takes on even greater importance as Congress continues to default on its obligation to restrict criminal liability and penalties to sensible bounds.
Prosecutors must also take into account the perpetrator’s state of mind, known in legal terms as mens rea. This approach is critical, Smith writes “to preventing morally undeserved punishment and guaranteeing the fair warning necessary to enable law-abiding citizens to avoid committing crimes.”
What do you think? Have you experienced the injustices of overcriminalization?