« "Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk" | Main | "Prisons are getting Whiter. That’s one way mass incarceration might end." »

February 28, 2021

Making the case to expand Prez Trump's executive order on overcriminalization

I noted in this post last month that, on January 18, 2021, Prez Trump issued an "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  This EO was intended to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, and this new Law.com commentary authored by Mark Holden and Norman Reimer make the case for expanding its ambit. The piece is headlined "Don't Reverse Trump's Order on Regulatory Overcriminalization, Expand Its Principles to Congress," and here are excerpts:

In the final days of his presidency, President Donald Trump signed an executive order entitled “Protecting Americans From Overcriminalization Through Regulatory Reform.”  While President Joe Biden has reversed a number of Trump’s executive orders, this is one he should keep. It is an important step in ensuring that criminal laws — specifically those buried in the countless thousands of federal criminal regulations — are clear and that prosecutors focus their tremendous power on enforcing those laws against people who actually intended to do something wrong or illegal....

This executive order sets forth three policies: (1) agencies that issue regulations with criminal penalties should be clear about what conduct is subject to criminal penalties and the mens rea standard for those offenses; (2) strict liability offenses are disfavored; and (3) criminal prosecutions of regulatory offenses should focus on people who knew what they were doing was wrong or prohibited, thereby causing or risking substantial public harm.

This executive order applies only to regulatory crimes, a specific subset of criminal laws that arise when Congress delegates authority to administrative agencies to criminalize conduct.  These laws are generally less well known to the public, because they are not enacted by Congress but rather by the dozens of agencies within the federal government. Furthermore, the overall volume of regulatory crimes has never been documented, though there are some estimates that number may be north of 300,000.

It is because these laws are less well known that this order is needed.  All laws, particularly criminal laws, should have clear requirements regardless of whether they are statutes passed by Congress or regulations issued by an agency.  It makes no sense for prosecutors to enforce these laws against people whose actions were not truly harmful and who did not know they were doing something that violated a criminal regulation.

Some critics might argue that this order would make it more difficult to prosecute white collar crimes.  But, making laws more clear, having fewer laws that call for strict liability, and focusing on truly wrongful conduct are laudable.  Indeed, it should be the norm in all contexts.  Moreover, just as most criminal law is disproportionately enforced against certain groups, regulatory enforcement is the same way.  The enforcement burden does not generally fall on Wall Street and C-suite executives, but rather on small businesses and the site managers, engineers and other mid- to low-level workers who work for them.

This executive order is a small, but meaningful, step in requiring the government to clearly lay out the conduct that is criminalized, to focus on persons whose wrongdoing was intentional and harmful, and to not punish people who did not know what they were doing was wrong or criminally prohibited.  In the rush to reverse prior policies, a positive step should be preserved.  Indeed, Congress should apply its principles to all of the statutory criminal law it enacts as well.

Prior related post:

February 28, 2021 at 08:57 PM | Permalink


I'm a broken record at this point, but I'll jut reiterate what I said on the linked post: This—i.e., the EO itself and its defenders/apologists—is purely a smokescreen to benefit white collar criminals.

Maybe Biden won't reverse it though. Historically it's well known that he's been sympathetic to the corporate set. And white collar stuff hasn't really been at the forefront recently between the obvious focus on COVID and police/immigration/prison reform etc. being most prominent in the (quasi-)criminal justice realm. So we'll see.

Posted by: hardreaders | Mar 2, 2021 9:16:14 AM

I will push back a bit just to wonder whether the terms "smokescreen" or "criminals" properly apply in this context. Let me explain:

1. The EO states that "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." The repeated mention of "regulatory offenses" shows that the EO is really only about "white collar" matters --- there is no real effort to hide that focus, and so I am not sure it is fair to call this a "smokescreen" for anything. (Broader advocacy for broader mens rea reform might be called such a smokescreen, though it will not be if done right.)

2. The "poster child" cases seeking to be addressed involve business people making seemingly reasonable effort to comply with regulations and them being federally prosecuted when they fail. Many reasonably argue that these folks ought not be deemed "criminals" at all -- at worst the should be subject to civil sanctions for reasonable effort to comply with applicable laws. I think here of Crystal Mason, the women who is serving 5 years for voting "fraud" in Texas when she unknowingly voted when it was illegal for her to do so. I am not eager to call her a "white collar criminals," but I am eager to have people like her be able to assert a lack of mens rea as a defense in these kinds of situations.

The EO states that "Where appropriate, agencies should consider administrative or civil enforcement of strict liability regulatory offenses, rather than criminal enforcement of such offenses." I'd like to see a Biden EO go further to say, "All federal authorities should consider whether and when administrative or civil enforcement can serve the public interest better than criminal enforcement."

Posted by: Doug B. | Mar 2, 2021 2:25:15 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB