This panel highlighted the issue of overcriminalization—the use of criminal rather than civil or administrative law to punish behavior that historically would not have been punished criminally. The trend toward overcriminalization is yielding dangerous consequences for the rule of law.
Louisiana State University professor emeritus of law John Baker began by noting the troubling fact that we don’t actually know the number of crimes defined within our legal system. Baker stressed that though a crime requires both an actus reus (“guilty act”) and a mens rea (“guilty mind”), too many modern criminal laws do not include an intent requirement, meaning individuals can be prosecuted for unknowingly breaking the law.
Federal appellate attorney Sidney Powell mentioned profound problems with the level of discretion and, hence, power that is given to prosecutors under the U.S. criminal justice system, which has so many criminal penalties attached to what should be civil offenses.
James Copland, director of the Manhattan Institute’s Center for Legal Policy, highlighted studies from a range of states that show overcriminalization is not just a federal problem, for numerous state regulations contain criminal sanctions without any intent requirements. He argued that ultimately the burden of these state sanctions tends to fall on small-business owners and individuals.
University of Notre Dame law professor Stephen Smith noted examples of how abusive prosecution is far too common and emphasized the need for courts to ensure that prosecutors act only within the bounds of their authority under criminal statutes. He echoed Copland’s concerns about the effect of overcriminalization on poor individuals and small-business owners in particular.
Shana-Tara O’Toole, director of the National Association of Criminal Defense Lawyers’ White Collar Crime Policy Unit, closed the discussion by stressing that in order to maintain the rule of law, the reform community needs to work together to overcome the challenges identified by the panel.
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