Legal Commentary

Dangers of the Overexpansion of Federal ?Regulatory Crimes?

By Ilya Somin

Marie Gryphon of the Manhattan Institute, a generally conservative think tank with strong libertarian leanings, has an excellent report summarizing several dangers of the overexpansion of federal criminal law in the field of ?regulatory crimes.? Here is the executive summary:

Since the dawn of Anglo-Saxon common law, conviction for committing a crime required evidence of malicious intent?that is, a conscious willingness to violate society?s norms by inflicting harm on people directly or by misappropriating or abusing their property. This stricture, which is often referred to as the blameworthiness principle, has tended to ensure that people who inadvertently and in good faith infringe laws and regulations will not suffer the stigmatization of a criminal conviction, not to mention the penalty of a steep fine or incarceration.

For their own compelling reasons, the economic and social policies of the New Deal came to undermine the blameworthiness principle. Standards of conduct promulgated to protect and advance the public?s health, safety, and welfare carried with them deterrents imported from the criminal law. Today, the regulatory state, the New Deal?s descendant, so thoroughly encompasses the range of commercial activity that businesses and businesspeople trying to reduce their costs, better their products, best their rivals?do all of the things, in short, on which survival in a market economy depends?run an ever-present risk of becoming ensnared in the criminal law. In many instances, the laws in question are so voluminous and loosely drafted that even a student of the legislation would not have fair notice of what conduct was prohibited and what was not.

Ordinary Americans have been convicted of crimes under overbroad federal laws because their employer unsuspectingly forwarded drugs that had been mislabeled by another company; because their adult children failed to properly record the itinerary of a camping trip in a public park while doing volunteer work for the family touring business; and because their computer servers stored copies of clients? e-mails as an emergency precaution. Others have been judged criminals for such common failings as violating the terms of an employee handbook that prohibited otherwise legal behavior; lying about the details of a legal business transaction in response to media inquiries; and falsely claiming to be a talent scout in order to attract women.

Perhaps the most egregiously catch-all statutes are those governing mail and wire fraud. They assign criminal penalties to any ?scheme or artifice to defraud? as long as the defendant could foresee that someone would use either the U.S. Postal Service or any form of electronic communication in (perhaps inadvertent) furtherance of the scheme as it unfolded. Yet these statutes lack any explicit language requiring a showing of harm, and the courts have not inferred or supplied such a requirement. Today criminal liability attaches to ?any scheme or artifice to deprive another of the intangible right of honest services? in the above areas. Such vague and capacious language gives overzealous prosecutors a virtual carte blanche to indict.

Responsibility for this state of affairs lies with both Congress and the courts. The former should make clear what categories of actor that laws like the fraud statutes contemplate. Congress should also insert into both existing and new laws, if they carry criminal penalties, the requirement of a showing of criminal intent. It should cease assigning criminal penalties to violations of agency-made regulations. And it should insert sunset provisions into all criminal laws.

The courts, as guardians of individual rights, have traditionally moved against due process abuses of the criminal law, but too often they have shown undue deference to Congress and federal agencies when it is their regulatory aims that are the source of the abuse. The courts could begin by reading some standard of criminal intent into all laws carrying criminal penalties. And they could give criminal defendants the benefit of the doubt when the law they have allegedly broken is ambiguous. The price for not doing so is not only the unjust punishment of many innocent people, but a chilling of the competitive spirit of those the law never touches.

Several of the points made in Marie?s paper dovetail with those made by guest-blogger Harvey Silverglate in his important recent book. Marie herself is a libertarian legal scholar (we clerked at the Institute for Justice together back when we were in law school), while Silverglate is a prominent liberal criminal defense lawyer and civil libertarian. It isn?t yet the broad cross-ideological alliance that we need to confine the scope of federal criminal law within defensible limits, but it?s one more part of a good start.

UPDATE: I have previously criticized the expansion of federal criminal law here, here, and here.

Full post as published by The Volokh Conspiracy on December 15, 2009 (boomark / email).