Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
As readers of this column know, NACDL has long sought to educate the public on the dangers of overcriminalization and promote efforts to stop it. Indeed, just last month, Inside NACDL addressed a dimension of overcriminalization manifested by overly broad prosecutorial expansion of criminal statutes — far beyond the intended objective at the time of enactment.1 But a related problem emanates from the legislative branch. More than four years ago, NACDL issued a seminal report in partnership with The Heritage Foundation that demonstrated how Congress, in its ceaseless and seemingly mindless enactment of new criminal provisions, passes legislation without regard to the need for new laws and without ensuring that they have adequate intent requirements. That report, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,2 set forth a compendium of practical solutions.
Among Without Intent’s proposed solutions to prevent the evisceration of intent requirements were calls for Congress to (1) enact default rules of interpretation ensuring that guilty-mind requirements are adequate to protect against unjust conviction; (2) codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly; (3) provide detailed written justification for and analysis of all new federal criminalization; and (4) redouble efforts to draft every federal criminal offense clearly and precisely. NACDL continues to press for these reforms. But, it is with enormous satisfaction that NACDL notes that the substance of a fifth proposed reform was recently enacted.
Without Intent advocated for the very practical concept that every bill proposing new criminal offenses should be reviewed by the Judiciary Committee of each house of Congress. This is a logical and practical step, designed to ensure that the committee with the most expertise in drafting criminal provisions plays an active role in reviewing any such provision. That is the best way to ensure that due process considerations and other core civil liberties principles, such as fair notice, are considered when new crimes are enacted.
At the start of the 114th Congress on Jan. 6, 2015, the House of Representatives adopted Rules of the House that included the addition of two simple words that accepted a critical component of this proposal. As many of you know, after a Member of Congress introduces a bill, the bill is then referred to the most relevant committee, typically the committee with jurisdiction over the bulk of the bill’s provisions. The effect of this referral practice is that bills containing criminal provisions may bypass the judiciary committee altogether. The change to the House Rules addresses this problem.
The Rules of the House include a jurisdictional statement for each House committee. Among the 19 enumerated subjects that are vested under the jurisdiction of the House Committee on the Judiciary is Item 7: “criminal law enforcement.” The new rules have added the words “and criminalization” to that provision. Congressional experts advise that this rule change means that, irrespective of the committee with primary jurisdiction over the bill, the House Judiciary Committee will now be afforded the opportunity to exercise its own jurisdiction over any bill containing new criminalization.
NACDL has sought the adoption of this type of rule at the start of each Congress since the publication of the Without Intent report, and has urged such adoption at every opportunity. For example, at the final hearing of the House Committee on the Judiciary’s Overcriminalization Task Force on July 25, 2014, NACDL Past President Steven D. Benjamin specifically urged the adoption of such a referral practice.3 And this year, as the House was beginning to organize, NACDL supported a joint effort by numerous groups to urge the adoption of the new language by drafting a bipartisan letter of support signed by 10 other organizations and individuals.4
The role of the Overcriminalization Task Force and the significance of the rule change were not lost on Rep. Bob Goodlatte, the chair of the Committee on the Judiciary:
Last Congress, the Judiciary Committee created a bipartisan Overcriminalization Task Force with the goal of examining the problems associated with a bloated, disorganized and often redundant collection of federal criminal offenses. One of the recurring themes from both the witnesses who appeared before the task force, as well as the Members of the task force, is that it is crucial that the Judiciary Committee have the opportunity to review all new federal criminal laws.
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The Rules package today clarifies the Committee’s jurisdiction over criminal matters by adding one word, “criminalization,” to our existing jurisdiction over criminal law. By making this change, the Judiciary Committee will have a new jurisdictional interest only in those relatively rare instances that a bill criminalizes new conduct by amending a statute that is attached to a criminal penalty without amending the penalty itself. In this instance, the Judiciary Committee will look to work with the other committees on ensuring that the new conduct is worthy of criminalization. …5
To reform the process by which Congress enacts new criminal provisions is a daunting task, one which moves at a glacial pace. It will be some time before the impact of this change will be clear, but there is no doubt that the glacier has moved.
- Norman L. Reimer, Overcriminalization and the Trial Penalty: Gaining Traction One Case — And One Justice — at a Time, The Champion, January/February 2015 at 9.
- Brian Walsh & Tiffany Joslyn (2010); available at www.nacdl.org/withoutintent.
- “The positive impact of such a practice was documented in the Without Intent report, which found a statistically significant positive correlation between the strength of a mens rea provision and Judiciary Committee action on a bill containing such a provision. ... Hopefully, such oversight would stem the tide of criminalization. …” The Crimes on the Books and Committee Jurisdiction: Hearing Before the House Committee on the Judiciary, Overcriminalization Task Force (2014) (written statement of Steven D. Benjamin, Past President, the National Association of Criminal Defense Lawyers); available at https://www.nacdl.org/Document/SBTestimonyJuly.
- The following groups and individuals submitted a joint letter to Speaker John Boehner: Americans for Tax Reform; Cause of Action; The Constitution Project; James R. Copland, Director, Center for Legal Policy at the Manhattan Institute; Families Against Mandatory Minimums; Heritage Action for America; Mark Holden, General Counsel and Sr. Vice President, Koch Industries, Inc.; NACDL; U.S. Chamber of Commerce; U.S. Chamber Institute for Legal Reform; and Washington Legal Foundation. Read the letter at https://www.nacdl.org/Document/LetteronHouseRuleonJudCmteJurisdiction01052015.
- 161 Cong. Rec. H21-22 (daily ed. Jan. 6, 2015) (statement of Rep. Goodlatte).
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
Norman L. Reimer
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