July 2014: Overcriminalization Concerns Emerge on Capitol Hill

Washington Watch | July 2014
By Bruce Moyer

There’s a saying that “politics makes strange
bedfellows.” That expression is aptly applied to a movement in Washington pitted against an emerging trend called “overcriminalization.”

Adherents of the overcriminalization movement come from both ends of the political spectrum, and include the business community, as well as civil liberties groups and the criminal defense bar. Supporters include lawmakers as disparate as the Tea Party icon Sen. Rand Paul (R-KY) and the longtime lion of the left Rep. John Conyers (D-MI), as well as interest groups ranging from the Heritage Foundation to the American Civil Liberties Union.

Together they have taken aim at what they see as the alleged overuse and misuse of criminal law. The roots of their concern are deeply libertarian, etched in the belief that Congress has overstepped its bounds through passing too many laws classifying seemingly harmless activities as crimes, or irresponsibly delegating authority to regulatory agencies to further define crimes.

Overcriminalization critics point at the dramatic expansion of the federal criminal code over the past several decades, resulting in a complex labyrinth of federal statutes and regulations, some of which impose criminal penalties without requiring that intent be shown to establish guilt. This has resulted in a massive and sometimes unwieldy federal criminal code, comprising of more than 4,500 federal crimes, growing at an estimated rate of 50 more per year. The explosion in the size and scope of federal criminal law, critics charge, has deteriorated the quality of our system of justice and respect for the rule of law.

Critics of overcriminalization also have directed their ire at Congressional practices delegating authority to regulatory agencies resulting in the creation of hundreds of thousands of federal regulations that, if violated, can also result in criminal liability. This “criminalization by bureaucrat” phenomenon has triggered so many criminal offenses that the Congressional Research Service reportedly ran out of funding before it could identify all of them.
Rep. Jim Sensenbrenner (R-WI), a former chair of the House Judiciary Committee, has long criticized this continuing creep of federal criminal jurisdiction and has introduced legislation in each Congress since 2005 calling for significant changes in how and when Congress defines federal crimes.

He recently said, “The need for reform becomes particularly apparent when you read the stories of well-meaning Americans whose lives have been turned upside down when they run afoul of an obscure Federal statute, rule, or regulation. In Virginia, a little girl saved a woodpecker from the family cat and was fined $535 because under the Federal Migratory Bird Act it is a crime to take or transport a woodpecker. In Texas, a 66-year-old retiree had his home raided by a SWAT team and spent almost two years in prison because he didn’t have the proper paperwork for some of his prized orchids, all of which were legally imported. The judge who sentenced him to prison said sometimes life hands us lessons. But the source of the sourness was the government.”

Rep. Sensenbrenner’s legislation, the Criminal Code Modernization and Simplification Act, H.R. 1860, would mandate an intensive rewrite of the criminal code and reform criminal laws. It also would reduce the number of federalized crimes by having more of them prosecuted at the local and state level.

Eliminating huge sections of the federal criminal code is an ambitious political task, especially when it’s relatively harder under our legislative system to repeal laws than to pass them. To gain traction for their ideas in Congress, Sensenbrenner and other lawmakers were successful last year in persuading House leaders to establish a bipartisan task force charged with holding hearings and writing a report on the scope and character of overcriminalization.

The Overcriminalization Task Force was created in May 2013 for a period of six months and reauthorized again earlier this year. The panel, consisting of five Republicans and five Democrats, is led by Sensenbrenner, now serving as Crime, Terrorism, Homeland Security, and Investigations Subcommittee chairman, and Ranking Judiciary Committee Member Bobby Scott (D-VA).

Last year, the Task Force held four hearings, covering topics such as the need for mens rea or meaningful intent requirements in our federal criminal laws and the expansion of regulatory crimes. Thus far this year it has held two hearings, one on reform of the criminal code and the other on Congressional establishment of mandatory minimum sentences for certain crimes, including drug trafficking.

Members of the task force include Reps. Spencer Bachus (R-AL), Louie Gohmert (R-TX), Raúl Labrador (R-ID), George Holding (R-NC), Steve Cohen (D-TN), Hank Johnson (D-GA), Karen Bass (D-CA), and Hakeem Jeffries (D-NY). Ex officio members include House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI).

Bruce Moyer is government relations counsel for the FBA. © 2014 Bruce Moyer. All rights reserved.

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