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January 19, 2021

Intriguing (and significant?) executive order from Prez Trump on "Protecting Americans From Overcriminalization Through Regulatory Reform"

I just saw this new federal Executive Order which was issued yesterday, January 18, 2021, by Prez Trump titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  Here are the main operational sections of the order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to improve transparency with respect to the consequences of violating certain regulations and to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, it is hereby ordered as follows:

Section 1. Purpose. In the interest of fairness, Federal criminal law should be clearly written so that all Americans can understand what is prohibited and act accordingly. Some statutes have authorized executive branch agencies to promulgate thousands of regulations, creating a thicket of requirements that can be difficult to navigate, and many of these regulations are enforceable through criminal processes and penalties. The purpose of this order is to alleviate regulatory burdens on Americans by ensuring that they have notice of potential criminal liability for violations of regulations and by focusing criminal enforcement of regulatory offenses on the most culpable individuals.

Sec. 2. Policy. It is the policy of the Federal Government that:

(a) Agencies promulgating regulations that may subject a violator to criminal penalties should be explicit about what conduct is subject to criminal penalties and the mens rea standard applicable to those offenses;

(b) Strict liability offenses are “generally disfavored.” United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Where appropriate, agencies should consider administrative or civil enforcement of strict liability regulatory offenses, rather than criminal enforcement of such offenses; and

(c) Criminal prosecution based on regulatory offenses is most appropriate for those persons who know what is prohibited or required by the regulation and choose not to comply, thereby causing or risking substantial public harm. Criminal prosecutions based on regulatory offenses should focus on matters where a putative defendant had actual or constructive knowledge that conduct was prohibited....

Sec. 5. Agency Referrals for Potential Criminal Enforcement. (a) Within 45 days of the date of this order, and in consultation with the Department of Justice, each agency should publish guidance in the Federal Register describing its plan to administratively address regulatory offenses subject to potential criminal liability rather than refer those offenses to the Department of Justice for criminal enforcement.

As regular readers likely know, lots of folks have long been concerned about federal "overcriminalization."  For many years across multiple administrations, public policy groups on both the left and the right have advocated for mens rea reforms and other tools to limit undue criminal liability for regulatory offenses.  Against that backdrop, I find it especially intriguing and ultimately puzzling that Prez Trump's last Executive Order during his last week in office would seek to address these issues.  Because I am not an expert in this space, I am not sure if this is a significant EO, but I am eager to hear from anyone who thinks it might be.

UPDATE: I now see that the Heritage Foundation has this new short commentary on this Executive Order under the headline "Trump Delivers Long-Awaited Triumph for Criminal Justice Reform in Last-Minute Executive Order."  Here is a snippet from the commentary with lots of links:

The executive order is designed to “protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations.”  

It recognizes what scholars from both sides of the political aisle have observed for decades: that federal criminal law is far-reaching, unintuitive, and difficult to understand. The National Association of Criminal Defense Lawyers, the American Civil Liberties UnionThe Charles Koch FoundationThe Heritage FoundationThe American Conservative Union, and many other groups have been advocating that the government clear up this tangled web of criminal laws because, as the executive order acknowledges, most Americans cannot reasonably understand what the law demands of them. And even accidental violations of arcane regulations can land them in prison.  

This isn’t hypothetical. The National Association of Criminal Defense Lawyers keeps a database of Americans who have been criminally punished for violating obscure regulatory laws.  

January 19, 2021 at 04:58 PM | Permalink


Maybe I missed something because this just resembles more of the same from the longstanding right-wing hobbyhorse of undermining white collar prosecutions, e.g. in financial crimes, consumer protection offenses, election law crimes, and public corruption offenses. I could also see it targeting (no pun) violations of firearms regulations, another favorite punching bag of reactionaries.

I suppose some on the left have decried purported overcriminalization in the drug realm, but for things like white collar and guns? That seems rather unlikely. And more generally, has the public in recent years ever been heard to complain that there were *too many* prosecutions of crooked bankers and gun fanatics? I don't think so.

This is totally performative anyway--the opposite of so-called virtue signaling, maybe call it vice display--because we all know the lifespan of this EO won't last much beyond this week. It really sums up Trump's entire existence: claiming all the credit while doing no actual heavy lifting.

Posted by: hardreaders | Jan 20, 2021 12:25:45 PM

This isn't about 'overcriminalization,' which has meant too much policing and incarceration of minorities and the poor. This is a deregulation of white collar crime, which has been on the agenda of the right.

The page from the National Association of Criminal Defense Lawyers hasn't been updated in a decade. Like white collar offenders have been overcriminalized under Trump, or Obama's Attorney General Eric Holder, who came from a white collar crime defense firm.

"Protecting Grifters Through Regulatory Reform"

Posted by: Paul Leighton | Jan 20, 2021 8:25:25 PM

Paul L., very well put, I totally agree.

The so-called "database" from NACDL sure was a joke in more ways than one. Maybe they thought people would be so impressed by throwing around that term (wow, computers!) that nobody would actually bother to click on the link? Like you said, it's a really emaciated collection of outdated links. Moreover, while I didn't recognize some of the names, the ones I did were hardly examples of overcriminalization. If you're going to highlight people like Yates and Bond, then yeah, good luck getting taken seriously.

In fairness to ex-AG Holder, he was alright on civil rights and voting rights. But as you noted, he couldn't be expected to do anything to rock the boat for his corporate buddies and past or future clients of his firms.

The fact that ACLU is on board with this thing doesn't wow me either. While generally they do fight the good fight, it's not like they haven't taken their share of boneheaded positions over the years. And they've been known to get in bed with unsavory outfits--like here--even when it's going to have serious negative side effects. I'm certainly sympathetic to what I perceive as ACLU's specific goal of combatting genuine overcriminalization--as you said, the kind that affects vulnerable populations. But surely that can be done without giving a pass to folks like Don Blankenship who least deserve it.

Posted by: hardreaders | Jan 20, 2021 11:09:40 PM

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