Marie Gryphon of the Manhattan Institute, a generally conservative think tank with strong libertarian leanings, has an excellent report summarizing several dangers of the overexpansion of federal criminal law in the field of “regulatory crimes.” Here is the executive summary:
Since the dawn of Anglo-Saxon common law, conviction for committing a crime required evidence of malicious intent—that is, a conscious willingness to violate society’s norms by inflicting harm on people directly or by misappropriating or abusing their property. This stricture, which is often referred to as the blameworthiness principle, has tended to ensure that people who inadvertently and in good faith infringe laws and regulations will not suffer the stigmatization of a criminal conviction or face incarceration.
The economic and social policies of the 1930s and beyond came to undermine the blameworthiness principle. Standards of conduct promulgated to protect and advance the public’s health, safety, and welfare carried with them deterrents imported from the criminal law. Today, the regulatory state so thoroughly encompasses the range of commercial activity that businesses and businesspeople trying to reduce their costs, better their products, best their rivals—do all of the things, in short, on which survival in a market economy depends—run an ever-present risk of becoming ensnared in the criminal law. In many instances, the laws in question are so voluminous and loosely drafted that even a student of the legislation would not have fair notice of what conduct was prohibited and what was not.
Ordinary Americans have been convicted of crimes under overbroad federal laws because their employer unsuspectingly forwarded drugs that had been mislabeled by another company; because their adult children failed to properly record the itinerary of a camping trip in a public park while doing volunteer work for the family touring business; and because their computer servers stored copies of clients’ e-mails as an emergency precaution. Others have been judged criminals for such common failings as violating the terms of an employee handbook that prohibited otherwise legal behavior; lying about the details of a legal business transaction in response to media inquiries; and falsely claiming to be a talent scout in order to attract women.
Perhaps the most egregiously catch-all statutes are those governing mail and wire fraud. They assign criminal penalties to any “scheme or artifice to defraud” as long as the defendant could have foreseen that someone would use either the U.S. Postal Service or any form of electronic communication in (perhaps inadvertent) furtherance of the scheme as it unfolded. Yet these statutes lack any explicit language requiring a showing of harm, and the courts have not inferred or supplied such a requirement. Today criminal liability attaches to “any scheme or artifice to deprive another of the intangible right of honest services” via the above channels. Such vague and capacious language gives overzealous prosecutors a virtual carte blanche to indict.
Responsibility for this state of affairs lies with both Congress and the courts. The former should make clear what categories of actor laws like the fraud statutes contemplate. Congress should also insert into both existing and new laws, if they carry criminal penalties, the requirement of a showing of criminal intent. It should cease assigning criminal penalties to violations of agency-made regulations. And it should insert sunset provisions into all criminal laws.
The courts, as guardians of individual rights, have traditionally moved against due process abuses of the criminal law, but in modern times they have shown undue deference to the regulatory aims of Congress and federal agencies. The courts could begin by reading some standard of criminal intent into all laws carrying criminal penalties. And they should give criminal defendants the benefit of the doubt when the laws they have allegedly broken are ambiguous. The price for not doing so is not only the unjust punishment of many innocent people, but a chilling of the competitive spirit of those the law never touches.
Several of the points made in Marie’s paper dovetail with those made by guest-blogger Harvey Silverglate in his important recent book. Marie herself is a libertarian legal scholar (we clerked at the Institute for Justice together back when we were in law school), while Silverglate is a prominent liberal criminal defense lawyer and civil libertarian. It isn’t yet the broad cross-ideological alliance that we need to confine the scope of federal criminal law within defensible limits, but it’s one more part of a good start.
UPDATE: I have previously criticized the expansion of federal criminal law here, here, and here.
Roger the Shrubber says:
Indeed, it now appears that you may be committing a federal crime by ordering orange juice:
http://www.kossome.com/?q=node/131
December 15, 2009, 9:38 pmDan says:
I agree that overly broad federal statutes are a problem, but mail and wire fraud still require a showing of fraud, which in turn requires a showing of scienter. You cannot inadvertently commit mail and wire fraud.
December 15, 2009, 9:50 pmfsfsfsfsfsfsfs says:
At the risk of sounding even more like a broken a record, the fallacy in all these libertarian-style arguments complaining about “excessive regulation” is that they don’t clearly specify from whose perspective the regulation is excessive.
Obviously, from the point of view of people prosecuted under whatever the regulation being complained about, or even people who might be prosecuted, the regulation is “excessive.”
Unfortunately for the libertarian position, that does not actually mean the regulation is “excessive”. Broad regulations do in fact benefit many classes of society. Prosecutors like them because it gives them more flexibility. They tend to increase the power of government generally, so legislators and the executives like them. And they certainly don’t harm judges in any way.
So, even if Somin and the libertarians are correct that in some normalistic sense the regulations are “excessive,” the regulations benefit the people with the direct power to enact and enforce them: legislators, prosecutors, police, and civil servants. So the libertarian argument is utterly irrelevant to whether the regulations or laws are actually enacted and enforced.
Here is an example to try and clarify this. Suppose, through my great insight, I want to buy on January 10, a million shares of some stock at $100, which I believe will rise in a month to $120.
Now suppose a bunch of irate bloggers argue using all kinds of examples that by buying this stock I am depriving the numerous sellers from whom I intend to buy these million shares the potential profit of $20 million. The irate bloggers give many sob stories about how much better off the money would be in the hands of the original sellers. They even correctly argue that once I have the $20 million, I will just waste the money.
Will these bloggers’ complaints, even if right, alter my behavior at all?
No, they won’t. It’s still in my best interest to buy the shares at $100 and sell them at $120. All the whining in the world won’t change that. Because from my point of view, I prefer to have $20 million under my control than under control of others.
Similarly here, the question legislators or civil servants generally ask in determining whether to enforce or enact a bill is not, except in utopia, whether the bill benefits some amorphous concept of “society generally.” Nor is it whether enacting the bill will forestall criticism on blogs. The question they ask is whether the bill benefits them. If they don’t ask this, in fact, they will eventually lose elections or positions or funding to competitors who do ask this question.
Thus, if you can show that excessive regulation is not in the best interest of the people actually deciding whether to enact and enforce the regulation then you might have a point. But all libertarians do is endlessly reiterate that assorted regulations are not in the best interest of the targets of the regulation or of third parties generally. Since none of these people actually vote on the enactment or enforcement of the regulation, the arguments never have any non-trivial impact.
December 15, 2009, 11:34 pmMike McDougal says:
I have never heard anyone make a serious argument that the preferences of government lawyers and politicians are legitimate concerns when attempting to make law for the benefit of the people. And you certainly don’t attempt to make that argument.
If you’re simply making the claim that people love to grab power, just about everyone is going to agree. But that point is so obvious that it’s hardly worth stating.
You don’t distinguish between normative claims and descriptive claims. In any event, your claim is still hopelessly muddled. You recognize that voters have an effect who gets into office, but you deny that telling voters about the harms of expansive criminal law is meaningful.
December 15, 2009, 11:45 pmAllan Walstad says:
1. Perhaps by publicizing the arbitrariness and entrapping quality of such government regulation, one may modify the incentives of the political/bureaucratic class. Perhaps pols will re-evaluate the cost/benefit tradeoff of enacting such legislation to them.
2. If only the Founders had attached criminal penalties to violating the Constitution. Might make the game a wee bit more interesting, eh?
December 16, 2009, 12:09 amChris Travers says:
Is the question whether the laws and regulations are enacted and enforced? If so you won’t get much argument from me. Or is it whether they SHOULD be? I would think that all political ideologies are quite relevant on that latter question.
Or am I missing something?
December 16, 2009, 12:15 amTweets that mention The Volokh Conspiracy » Blog Archive » Dangers of the Overexpansion of Federal “Regulatory Crimes” -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: Dangers of the Overexpansion of Federal “Regulatory Crimes”: Marie Gryphon of the Manhattan Institute, a genera.. http://bit.ly/5S2GnF [...]
December 16, 2009, 2:50 amPersonFromPorlock says:
I think his point is that “telling voters about the harms of expansive criminal law” isn’t one of the things that affects who they vote for, while ‘defending’ them from ‘criminals’ is.
There is some hope that we are approaching a tipping point on this, though.
December 16, 2009, 6:07 amlgm says:
Obviously there must be boundaries, but there is a tendency to regard “white collar crime” as less damaging or less criminal than crimes force. A mining company manager who willfully disregards safety regulations is just as serious threat to the safety of workers as a mugger. Fraud can be just as damaging as burglary.
December 16, 2009, 8:17 amPersonFromPorlock says:
Mugging and burglary aren’t federal crimes, though. Why should safety violations and fraud be? And at any rate, we’re talking here about actions which wouldn’t be crimes even at the state level, at least under the old understanding of ‘crime’.
December 16, 2009, 9:23 amYankev says:
The key word in your sentence is “willfully”, which is quite different from unknowingly. Deliberately taking an act that violates the standard is one thing. Taking that same act while knowing that it violates the standard is another thing altogether.
December 16, 2009, 9:33 amInstapundit » Blog Archive » SOME DANGERS OF the expansion of “federal regulatory crimes.”… says:
[...] SOME DANGERS OF the expansion of “federal regulatory crimes.” [...]
December 16, 2009, 12:39 pmChris Travers says:
PersonFromPorlock:
And fraud isn’t always a federal crime either.
However, if one person in Idaho defrauds some person in Oregon, why would federal charges be inappropriate?
I suppose since states are separate sovereigns, it would be theoretically possible to charge the individual in both Idaho and Oregon (and in any other state where his victims reside, with an extra charge in Idaho for each instance as well) so it might not be strictly-speaking necessary to have federal enforcement. But federal enforcement might reduce the pressure on all states to prosecute in addition.
December 16, 2009, 1:32 pmM. Report says:
In a fully realized bureau-
cratic state, _everything_
is illegal; Joke, still ?
This places random individuals
at risk; Any targeted, large-
scale abuse would be quickly detected and punished; Or not ?
Be Cavalier; Call it a cost of
doing business, or collateral
damage, and drive on. Or not.
Probably not, in the exceptional
December 16, 2009, 1:39 pmcase of the US; If legal debate
fails, well “A motion to Adjourn
is always in order.”
AndyJ says:
I do not understand how Congress gets the authority to -DELEGATE- it’s constitutional power to the Executive Branch. By delegating it’s authority to write laws and define penalties to the Executive Branch Congress has abandoned it’s primary reason for existence.
The Executive Branch has no Constitutional authority to create legislation under the guise of regulation. Nor should the Executive fund am NGO to file lawsuit expanding the agency’s authority to regulate and penalize.
Not being an attorney nor having played one on TV, I fail to understand how the roles of the Legislative and Executive have become so enmeshed and interchanged that it is impossible to see where one ends and another begins. My simple readings say that one branch Legislates and the other Executes the laws of the land.
I look forward to the lawsuit that repeals all regulations having the force of law…and requiring the Legislature to bear responsibility for their actions before the voters.
December 16, 2009, 4:41 pmCD says:
<blockquote cite=”comment-707863″>
<strong><a href=”#comment-707863″ rel=”nofollow”>lgm</a></strong>: A mining company manager who willfully disregards safety regulations is just as serious threat to the safety of workers as a mugger.
</blockquote>
The key word in your sentence is “willfully”, which is quite different from unknowingly. Deliberately taking an act that violates the standard is one thing. Taking that same act while knowing that it violates the standard is another thing altogether.
December 16, 2009, 10:00 pm