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News
May 19, 2016

Facing the Consequences of Over-Criminalization

By Norman Reimer
Executive Director
National Association of Criminal Defense Lawyers (NACDL)

America’s criminal justice system is out of control. We jail too many for too long. We arrest too many for too little. And we criminalize all manner of disfavored social, personal, and economic behavior like there is no tomorrow.

From less than 200 federal criminal statutes at the beginning of the 20th century, there are now approximately 4,500 federal criminal statutes, and perhaps up to 300,000 additional criminal provisions in federal regulations.

Beyond that, society has erected a vast network of more than 50,000 collateral consequences, which extend far beyond criminal sanctions, leaving individuals and businesses that have had contact with the criminal law to face a myriad of civil debarments, exclusions, and disabilities. 

The effects of this infatuation with criminalization are manifest throughout society. Its impact is felt in virtually every community, and it poses a serious threat to American enterprise.

Vague criminal provisions, over- zealous prosecutors, and a vast array of tools wielded bluntly not only put well-meaning actors at grave risk of wrongful prosecution, but also make the cost of asserting fundamental constitutional rights prohibitive.

It is time to expose the abuses of over-criminalization, and develop a clear and coherent reform strategy.

Next week, NACDL and ILR are co-sponsoring a law and policy symposium titled The Enforcement Maze: Over-Criminalizing American Enterprise. The program, which features an extraordinary array of speakers and panelists, will be held on May 26, 2016 at the U.S. Chamber of Commerce, starting at 8:30 a.m. 

This program will address issues well beyond just the proliferation of criminal provisions, many of which are ambiguous and lack clear criminal intent requirements. It will expose pervasive systemic abuses.  It will examine the abusive manner in which a growing number of investigations are conducted, including the perversion of the grand jury process and rampant discovery abuse.

The event will also explore how deliberately over-charging in criminal cases, amidst a regime of draconian penalties, undermines the right to a trial by jury, supplanting a fundamental constitutional right with the necessity to accept a plea bargain.

The so-called “trial penalty” has virtually annihilated the constitutional right to a trial. What are the consequences of a system in which the government is only rarely required to prove its case? What are the implications of this on businesses, both large and small? Ultimately, what are the long-term prospects for entrepreneurship in an environment where even the most minor, unintentional misstep may result in criminal investigation, prosecution, and loss of liberty?

Leaders from industry, academia, law, and policy reflecting a broad ideological and political spectrum will address these issues. The pressing need for criminal justice reform is one area in our national discourse in which there is emerging bipartisan consensus. The partnership between ILR and NACDL underscores this point, as does the symposium’s featured speakers, including Representative Bob Goodlatte, Chairman of the House Judiciary Committee, Senator Orrin Hatch, and former Obama Administration Deputy Attorney General David Ogden.

If you are concerned about a criminal justice system that is out of control, this is an event you will not want to miss.

 

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