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Board Resolution ~ 01/06/2010

Concerning Adoption of Federal Criminal Provisions

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Concerning Adoption of Federal Criminal Provisions  

Washington, DC
January 6, 2010

WHEREAS, there are over 4,000 federal crimes scattered throughout the federal criminal code, as well as untold numbers of federal regulatory criminal provisions;

WHEREAS, 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;

WHEREAS, enforcement of this inefficient and ineffective scheme is at tremendous taxpayer expense;

WHEREAS, overcriminalization can take many forms but 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 bear no relation to the wrongfulness or harm of the underlying crime or the circumstances of the individual, (v) the federalization of crimes traditionally reserved for state jurisdiction, and (vi) the adoption of duplicative and overlapping statutes;

WHEREAS, the harm caused by overcriminalization is exacerbated by the executive and judicial branches, but generally originates in the legislative process;

AND, WHEREAS, in order to stem the further proliferation of the federal criminal code, to address the problem of overcriminalization, and to bring about necessary changes to the federal criminal law, reforms must be tailored to address the root causes of these problems;

NOW THEREFORE BE IT RESOLVED that the National Association for Criminal Defense Lawyers urges Congress to address the aforementioned flaws through reforms to the federal criminal law and Congressional rules and procedures, including:

  1. Provide a specific mens rea in all criminal statutes;
  2. Codify uniform rules for interpreting and applying mens rea requirements where unspecified in the statute;
  3. Codify the established rule of lenity, which is the judicial rule of statutory construction that requires a court to resolve any ambiguity in a criminal law in favor of the defendant;
  4. Strengthen Congressional rules and procedures to ensure that Judiciary Committees are given sequential referral over every bill that would add or modify criminal offenses or penalties;
  5. Create a mandatory reporting requirement on all new federal criminalization.

THEREFORE BE IT FURTHER RESOLVED that the National Association for Criminal Defense Lawyers urges Congress, when drafting legislation, to include an adequate mens rea requirement in any new or amended criminal offense, to define both the actus reus and the mens rea of the criminal offense in specific and unequivocal terms, to draft criminal offenses in a deliberate, precise and clear manner, and to refrain from delegating Congressional criminal law-making authority to unelected agencies, bodies and/or officials.

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