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Battling the Overcriminalization of Conduct
There are over 4,000 federal crimes scattered throughout the federal criminal code, as well as untold numbers of federal regulatory criminal provisions. Enforcement of this monstrous criminal code has resulted in a backlogged judiciary, overflowing prisons, and the incarceration of innocent individuals who plead guilty not because they actually are, but because exercising their constitutional right to a trial is all too risky. Enforcement of this inefficient and ineffective scheme is, of course, at tremendous taxpayer expense. Although the harm caused by overcriminalization is frequently amplified by the executive and judicial branches, it generally originates in the legislative process. While it can take many forms, overcriminalization most frequently occurs through (i) the enactment of criminal statutes that often lack a meaningful mens rea requirement, (ii) the imposition of vicarious liability for the acts of others with insufficient evidence of personal awareness or neglect, (iii) the expansion of criminal law into economic activity and areas of the law traditionally reserved for regulatory and civil enforcement agencies, (iv) the creation of mandatory minimum sentences that frequently bear no relation to the wrongfulness or harm of the underlying crime, (v) the federalization of crimes traditionally reserved for state jurisdiction, and (vi) the adoption of duplicative and overlapping statutes.
Click here to learn about the groundbreaking, non-partisan report published by the National Association of Criminal Defense Lawyers and The Heritage Foundation, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law.
Read the July 22, 2010, cover story from The Economist, "Rough justice in America - Too many laws, too many prisoners," and the editors' highlights, "Rough justice - America locks up too many people, some for acts that should not even be criminal," to learn about real-life examples of overcriminalization.
Click here to read the January 6, 2010, NACDL Board Resolution Calling for Federal Criminal Law Reforms to address the problem of overcriminalization.
On October 29, 2004, the National Association of Criminal Defense Lawyers, the American University Law Review (Washington College of Law) and The Heritage Foundation, presented an all-day symposium on "Overcriminalization: The Politics of Crime."
Below are the downloadable materials in PDF format.
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