Friday, June 7, 2013


A recent New York Law Journal article, Overcriminalization of Non-Violent Conduct: Time for Real Reform by attorneys Robert J. Anello and Richard F. Albert, examines the proliferation of federal criminal laws and the resulting increase in the federal prison population, approximately 40% above capacity, costing taxpayers almost $7 billion a year, almost 30% of the Justice Department's budget. The article cites Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which is available in the SARA, the Brooklyn Law School catalog. With Congress adding an average of 500 new crimes to the books in each of the past three decades and the addition of  tens of thousands of regulations with criminal penalties, many without traditional mens rea or criminal intent, critics contend that these newly created crimes violate fundamental principles of fair notice, and subjects individuals to criminal punishment for conduct that they do not know is illegal.
The article points to a number of proposed remedies including legislative reform and judicial reform. See the Justice Safety Valve Act of 2013 and United States v. Goyal, 629 F.3d 912 (9th Cir. 2010) where the U.S. Court of Appeals for the Ninth Circuit reversed a corporate CFO's fraud conviction finding that no reasonable jury could have found the defendant guilty beyond a reasonable doubt.

For more on the subject, see the BLS Library copy of Overcriminalization: The Limits of the Criminal Law (Call #KF9223 .H87 2008) by Douglas Husak who argues that the U.S suffers from too much criminal law and too much punishment. The author notes that most Anglo-American legal philosophers have neglected the topic and argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself, even though these resources have not been used explicitly for this purpose.

No comments: