By Senator Orrin Hatch
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In recent months, there has been a great deal of debate about sentencing reform. Various proposals have been introduced to cut prison sentences, augment judges’ ability to sentence below statutory minimums, or allow prisoners to earn early release for good behavior.
While these ideas are important, we not must forget the larger problem from which unduly harsh or unfair prison sentences ultimately stem. That is the problem of overcriminalization.
For decades now, Congress has had the attitude that the answer to society’s ills is to criminalize more and more conduct. Whenever something bad happens, the invariable response is to create a new crime to ensure that the bad thing never happens again.
But not every bad act needs to be criminalized. In many cases, civil penalties suffice.
Moreover, the fact that something bad happens does not necessarily mean there is a hole somewhere in the criminal code that must be plugged. In most cases, existing law provides all the tools prosecutors need to bring bad actors to justice.
Decades of overcriminalization by Congress have resulted in the creation of thousands of federal crimes. Some of these are familiar prohibitions on murder, assault, and other inherently wrongful conduct. But many are incredibly esoteric. For example, it’s a federal crime, punishable by up to six months in prison, to use the 4-H club logo without authorization. It’s also a federal crime, again punishable by up to six months in prison, to walk a dog in a federal park area on a leash that’s longer than six feet. No person can reasonably be expected to know the details of all these laws, or even that they exist.
The overcriminalization problem lies not only in the sheer number of federal crimes, but also in their vague, duplicative, and even conflicting terms. Consider the case of John Yates, who was convicted of violating the “anti-shredding” provision of the Sarbanes-Oxley Act. This extraordinarily broad law, which Congress passed in the wake of the Enron scandal, prohibits destruction of any “tangible object” with “intent to impede, obstruct, or influence” a federal investigation.
Yates was not an Enron executive, or any sort of corporate executive. He was a fisherman. His crime? Discarding a small number of undersized fish from his boat after a state inspector found him carrying fish slightly below the minimum legal size. Yates appealed his conviction all the way to the Supreme Court on the ground that the statute did not apply to his conduct. By a 5-4 vote, the Court agreed.
In a remarkable move, the dissenting Justices—who had voted to sustain Yates’s conviction—heaped scorn on the anti-shredding statute. They called it a “bad law—too broad and undifferentiated, with too-high maximum penalties.” Its vague terms and overly harsh penalties were “unfortunately not an outlier,” but rather “an emblem of a deeper pathology in the federal criminal code.”
These words should be a wake-up call. For too long, Congress has criminalized too much conduct and enacted overbroad statutes that sweep far beyond they evils they’re designed to avoid.
There are also other problems with the criminal code that Congress must address. Foremost among these is the failure of many statutes to specify the level of criminal intent prosecutors must prove to obtain a conviction. Historically, in order to convict, the government had to prove both that the defendant committed the criminal act and that the defendant acted with a guilty mind. This prevented government from locking people up for conduct they didn’t know was wrong.
But many modern criminal statutes fail to specify a criminal intent requirement, leaving people vulnerable to prosecution for violating laws they don’t even know exist.
This is particularly problematic because many such laws, such as the dog walking and 4-H club offenses described above, involve conduct that is not inherently wrongful. Only a person who knows the details of such offenses—and knows that they exist—knows that conduct in violation of the offenses is criminal. The average American, who has better things to do than memorize the entire criminal code, has no idea.
To remedy the situation, Congress should set a default intent requirement for all criminal statutes, which it can then depart from in individual settings as appropriate. Such legislation would not mandate a particular intent standard for all crimes, nor would it override existing standards set forth in statutes. All it would do is set a default for when Congress has failed to specify the criminal intent required for conviction. This reform should be part of any package of criminal justice legislation that Congress passes.
The problem of overcriminalization is multifaceted. It concerns how Congress crafts criminal laws, how it decides what’s a crime in the first place, and how it sets (or doesn’t set) criminal intent requirements. As we consider proposals to modify sentencing practices, we should also ask ourselves what we can do to fix the many other aspects of our criminal code that need reform. Legislation to shore up criminal intent requirements should be at the top of that list.
