Recommendations to Reduce Overcriminalization and Overfederalization
Resist Overcriminalization and Overfederalization
Insufficient Oversight of New and Modified Criminal Offenses and Penalties
While the House and Senate Judiciary Committees have jurisdiction over federal criminal law, congressional rules do not require bills containing criminal offenses to be referred to and reported out by the respective judiciary committee before floor consideration by the full chamber. Further, Congress is not required to assess the justification for, and cost of, new criminal offenses or penalties before legislative action or enactment.
Amend Rules and Reporting Requirements to Stem Overcriminalization and Overfederalization
Legislative
Congress should amend its rules to require that every bill that would add or modify criminal offenses or penalties is automatically referred to the House or Senate Judiciary Committee, as appropriate. This “sequential” referral requirement would give the Judiciary Committees exclusive control over a bill until they either report the bill out or the time limit for its consideration expires; only at that time could the bill move to another committee or to the full chamber. This reform will require changes to the rules of the House and Senate through the Rules Committees.
Because of their jurisdiction over federal criminal law, the House and Senate Judiciary Committees have special expertise in drafting criminal offenses and knowledge of federal law enforcement priorities and resources. Therefore, requiring Judiciary Committee oversight of bills containing criminal offenses or penalties would produce clearer, more specific criminal laws. It should also help protect against overcriminalization and foster a measured, prioritized approach to congressional criminal lawmaking.
Currently, there is no comprehensive process for Congress to determine whether new offenses or penalties are necessary and appropriate. Therefore, Congress should enact legislation mandating reporting for all new or modified criminal offenses and penalties. Mandatory reporting would increase accountability by requiring the federal government to perform a basic analysis of the grounds and justification for all new and modified criminal offenses and penalties. Working together with the sequential referral reform, this mandatory reporting requirement would decrease overcriminalization and overfederalization.
Congress should pass legislation similar to the Federalization of Crimes Uniform Standards Act of 2001 (Manzullo bill)38, requiring mandatory reporting by which the federal government produces a standard public report assessing the purported justification, costs, and benefits of all new or modified criminalization. This report should also include an assessment of whether the criminal offense or penalty is duplicative of state law; a comparison to similar offenses or penalties in existing federal, state, and local laws; and an analysis of any overlap between the conduct to be criminalized and conduct already criminalized by existing laws. The report should be available to the public before any major legislative action on a proposed bill. Federal agencies should also be subject to mandatory reporting prior to issuance of new guidance or rules.
Prevent the Further Erosion of Mens Rea Requirements
The Omission of Mens Rea Terminology and Use of Blanket or Introductory Mens Rea Terms Jeopardizes Innocent Individuals
Where Congress omits mens rea terminology from a statute defining a criminal offense, innocent individuals are at risk of unjust conviction.39 Similarly, when Congress uses a mens rea term in a blanket or introductory manner, all parties—defendants, the government, and the courts—are forced to litigate the proper application of such term, again, placing innocent individuals at risk of unjust conviction.40
Congress Should Enact Default Mens Rea Rules
Legislative
Congress should enact legislation specifically directing federal courts to grant a criminal defendant the benefit of the doubt when Congress has failed to adequately and clearly define the mens rea requirements for criminal offenses and penalties. This statutory enactment should be two-fold. First, Congress should direct federal courts to read a protective, default mens rea requirement into any criminal offense that lacks one. This will address the problems that arise when Congress omits mens rea terminology. Second, Congress should direct federal courts to apply an introductory or blanket mens rea term in a criminal offense to each element of the offense. This reform will eliminate much of the uncertainty that exists in federal criminal law over the extent to which an offense’s mens rea terminology applies to all of the offense’s elements.
Increase Fairness in the Interpretation of Vague, Unclear, or Ambiguous Statutes
Vague, Unclear, or Ambiguous Statutes Put Individuals at Risk of Unjust Prosecution and Punishment
Vague, unclear, or ambiguous statutes violate the principle of due process because they fail to put individuals on notice of what conduct is criminal. Further, these statutes put federal courts in the position of legislating from the bench.
Codify the Common-Law Rule of Lenity
Legislative
Congress, through its Judiciary Committees, should enact legislation codifying the common-law rule of lenity. The rule of lenity directs a court, when construing an ambiguous criminal law, to resolve the ambiguity in favor of the defendant. Codification of this rule should reduce the risk of injustice stemming from criminal offenses that lack clarity or specificity. Further, giving the benefit of the doubt to the defendant is consistent with traditional rules presuming all defendants are innocent and placing the burden of proof of every element of a crime beyond a reasonable doubt on the government.
Explicitly codifying the rule of lenity into federal law would simply codify a long-standing principle upheld by the Supreme Court, and which the Court has called a fundamental rule of statutory construction.41 It would also help federal courts treat defendants uniformly, thereby restricting the instances in which federal courts are forced to legislate from the bench. This would protect Congress’s lawmaking authority and advance separation of powers principles. Finally, this reform should encourage Congress to speak with more clarity and legislate more carefully.
Reject and Repeal Mandatory Minimum Sentences
Mandatory Minimum Sentences Result in Overcriminalization
Mandatory minimum sentencing policies come with billions in direct costs. In 2008, American taxpayers spent over $5.4 billion on federal prisons,42 a 925 percent increase since 1982.43 This explosion in costs is driven, in part, by the expanded use of prison sentences for drug crimes and longer sentences required by mandatory minimums. The federal prison population has increased nearly five-fold since mandatory minimums were enacted in the mid-80s and mandatory guidelines became law.44 About 75 percent of the increase was due to mandatory minimums and 25 percent due to guideline increases above mandatory minimums.45
Reject and Repeal Mandatory Minimum Sentences
Legislative
Congress should reject and repeal mandatory sentencing minimums.46 See, Smart on Crime: Federal Sentencing.
Preservation of the Attorney-Client Privilege in Federal Investigations and Proceedings
The Attorney-Client Privilege is Under Federal Governmental Assault
As mentioned previously, many federal government agencies have recently adopted policies that erode the attorney-client privilege, the work product doctrine, and employee legal protections in the corporate context. Each of these policies—including DOJ’s 2006 “McNulty Memorandum,” the SEC’s 2001 “Seaboard Report,” the Environmental Protection Agency’s “Audit Policy,” and similar policies by other agencies—pressure companies and other organizations to waive their attorney-client privilege and work product protections as a condition of receiving full cooperation credit during investigations. These policies also contain separate provisions that weaken employees’ Sixth Amendment right to counsel, Fifth Amendment right against self-incrimination, and other fundamental legal rights by pressuring companies not to pay their employees’ legal fees during investigations, to fire them for not waiving their rights, and to take other punitive actions against them long before any guilt has been established.
Enact Attorney-Client Privilege Protection Act or Issue Executive Order to Preserve Its Protections
Legislative
The 112th Congress should enact comprehensive legislation like the Attorney-Client Privilege Protection Act (ACPPA) to ensure that the basic reforms implemented by DOJ apply to all federal agencies. The Senate and House Judiciary Committees have held four separate hearings on this issue since early 2006. At each hearing, a broad range of concerned organizations and constituents testified in support of legislative reform.
In November 2007, the House overwhelmingly approved the ACPPA, sponsored by Reps. John Conyers (D-MI), Bobby Scott (D-VA), and Lamar Smith (R-TX).47 The reforms in this bill were comprehensive, applying to all federal agencies. A Senate companion bill, sponsored by then-Senators Arlen Specter (R-PA), Joseph Biden (D-DE), and 12 others from both parties, was also introduced in the 110th Congress but failed to receive a vote.48 On February 13, 2009, Senator Specter reintroduced similar legislation, and 49 on December 16, 2009, Rep. Scott subsequently reintroduced the House version of the bill.50 Many of the bill’s reforms were later adopted by the Justice Department (DOJ) in its revised corporate charging guidelines.51 However, unlike the reforms in the House bill—sponsored by Representatives John Conyers (D-MI), Bobby Scott (D-VA), and Lamar Smith (R-TX)—which apply to all federal agencies, the DOJ policy was limited in scope.52
Enactment of comprehensive legislation like the Attorney-Client Privilege Protection Act (ACPPA) is needed to ensure that the basic reforms implemented by DOJ apply to all federal agencies.
Executive
Absent Congressional action, the President should issue an executive order preserving the protections of the attorney-client privilege.
In August 2008, DOJ replaced the McNulty Memorandum, which limited attorney-client privilege, with revised corporate charging guidelines that generally bar prosecutors from pressuring companies to waive their attorney-client privilege, work product, or employee legal rights in return for cooperation credit, with certain exceptions. The President should issue an executive order applying DOJ’s reforms to all federal agencies to clearly protects the sanctity of the privilege.