The Champion

September-October 2012 , Page 09 

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When It Comes to Overcriminalization, Prosecutorial Discretion Is for the Birds (Inside NACDL)

By Norman L. Reimer

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The annual White Collar issue of The Champion is an apt time to reflect on noteworthy developments of the past year. From a public policy standpoint, and from the perspective of those who are the subject of investigation and prosecution, the phenomenon broadly defined as overcriminalization is a growing problem. Overcriminalization includes many troubling trends: multiple, overlapping criminal provisions; inadequate definition of precisely what conduct is criminal in those provisions; the erosion of intent requirements; excessive penalties; and a general imbalance that imbues the prosecution with disparate power that chills and sometimes impedes an accused’s capacity to mount a defense. NACDL works with allies from across the ideological spectrum to pursue a multi-faceted strategy to combat each of these trends. Notable cases from the past year underscore the importance of this initiative.

In response to reform efforts, whether it is to limit the enactment of new criminal

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