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May 2, 2024
Will Congress ever actually do something about federal overcriminalization?
Concerns about overcriminalization, especially at the federal level, have long been bipartisan. Nearly 15 years ago, the Heritage Foundation and the National Association of Criminal Defense Lawyers teamed up on a big report with a focus on mens rea issues. More than 10 years ago, the U.S. House of Representatives unanimously created the "Overcriminalization Task Force of 2013" to study and conduct hearings on the problem of overcriminalization. A couple of days before leaving the White House, President Trump issued this Executive Order on "Protecting Americans From Overcriminalization Through Regulatory Reform" (though President Biden rescinded this order a few months later). Earlier this week, the GOP-led House Judiciary Subcommittee on Crime and Federal Government Surveillance held this hearing titled "Overreach: An Examination of Federal Statutory and Regulatory Crimes," at which all the witnesses assailed federal overcrminalization. And so, too, did the Ranking Democratic Member of the House Judiciary Committee in this opening statement.
But, as the title of this post suggests, bipartisan complaints about federal overcriminalization seemingly has not resulted in much (any?) significant congressional action in the form of actual statutory legal reforms. Of course, this is a pattern we see in many arenas: talking in general terms about a legal problem often proves much easier than actually settling on reform particulars for legislative enactment. Still, just the fact of this past week's "Overreach" hearing leads me to believe there are still a number of lawmakers who might really want to get something done in this space. And yet, because there is no major consituency or significant voting block that will be always eager to press Congress on these topics, I fear the easy and likely right answer to the question in the title of this post has to be "No."
May 2, 2024 at 03:49 PM | Permalink
Comments
The answer to the question is no. I wrote about this over thirty years ago and the problem hasn't changed. Congress does not care about overcriminalization or what the proper scope of federal criminal law should be. Whenever there is a crime du jour, there needs to be a federal response to it (even if the federal law only applies to a rare case) so that members of Congress can tell their voters that they did something about it.
As far as Congress is concerned, overcriminalization is a problem about specific offenses (with each member having their own set of offenses) and whom those offenses might apply to.
Posted by: tmm | May 6, 2024 10:46:11 AM
Many will be familiar with United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), which is now pending on Certiorari to the U.S. Supreme Court, No. 22-1915. The issue in Rahimi is whether 18 U.S. C. sec. 922(g)(8) violates the Second Amendment right to bear arms, after the decision in New York Rifle & Pistol Assoc., Inc. v. Bruen, 597 U.S. 1 (2022), which requires all gun regulations to fit within the nation's historic tradition of regulating the possession of firearms, since the 2nd Amendment was adopted in 1791. On page 17 of his Response Brief, Rahimi's counsel notes that publicly available information indicates that the DOJ prosecutes fewer than 50 people per year are prosecuted nationwide for violating that gun statute.
Posted by: Jim Gormley | May 6, 2024 11:24:25 AM
