Wednesday, September 23, 2015

Congress and Overcriminalization

I was honored to serve as the moderator of a recent discussion on Capital Hill regarding overcriminalization.  The discussion occurred on September 16, 2015 and was entitled "Striking the Right Balance: Criminal v. Civil Law Sanctions."  The program description is below:
How should our federal government strike the right balance between the use of criminal law sanctions instead of civil law sanctions? Are prosecutors expanding the reach of criminal statutes to address conduct that was clearly not contemplated by Congress when enacted? 
The event began with an opening address by Norman Reimer, Executive Director of the NACDL.  That was followed by a panel discussion, which included myself as moderator, Adeel Bashir (Appellate Division, Office of the Federal Defender, M.D.Fla.), John Lauro (Lauro Law Firm), and Marjorie Peerce (Ballard Spahr).  It was a wonderful event, and I encourage you to watch the below video of the discussion.  It included several fascinating stories of overcriminalization and the impact of this phenomenon on people, families, and communities.  The panel also addressed the symbiotic relationship between plea bargaining and overcriminalization (see article here regarding this topic).  Finally, among other issues discussed, the panel offered thoughts regarding potential solutions to overcriminalization with a particular focus on the role of Congress in drafting criminal laws.  


Interestingly, several days after the presentation, Senator Orrin Hatch (Utah) took to the floor of the U.S. Senate and presented his approach to reforming the U.S. criminal justice system.  Specifically, he focused on the need for meaning criminal intent requirements to ensure that "honest, hard-working American are not unjustly imprisoned."  

Senator Hatch also discussed overcriminalization and touched on many of the issues presented during the above panel discussion.
For too long, Congress has criminalized too much conduct and enacted overbroad statutes that sweep far beyond the evils they’re designed to avoid.  Surely, of all the categories of laws we pass here in Congress, we should take most care with criminal laws.  Criminal laws empower the state to deprive citizens of liberty and precious financial resources.  They carry serious collateral consequences, including loss of the right to vote, the right to own a firearm, and the ability to hold certain jobs.  And they permit the state to brand citizens with that most repugnant of all titles—criminal.  There is simply no excuse for sloppily drafted, slapdash criminal laws.  Too much is at stake.
Senator Hatch's full speech is available here.



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