Dick Thornburgh. The Challenge of Over-Criminalization
It may odd seem to some for me, as a former prosecutor, to focus on the perils of over-criminalization. We live in a time when concern remains high in our society about the problem of crime in general and corporate crime in particular. But considerable misgiving has developed about over-criminalization and the threat it poses to established institution and ways of life. This misgiving has brought together such disparate public advocacy groups as the American Bar Association, the National Association of Criminal Defense Lawyers and the American Civil Liberties Union with The Heritage Foundation, the Washington Legal Foundation and the Cato Institute. However divergent the interests of these groups may be otherwise, they all share a common goal in this area: to have criminal statutes that punish actual criminal acts and do not seek to criminalize conduct that is better dealt with by the seeking of civil or regulatory remedies. And this is the nub of the problem.
In fact, I have served on both sides of the aisle in criminal cases during my career — as a federal prosecutor for many years and more recently as a defense attorney involved in proceedings adverse to the U.S. Department of Justice. This provides me, I believe, with a balanced view of the issues in today's criminal justice system. I'd like to suggest some thoughts as to how to deal with what I see as the growing challenge of over-criminalization.
The criminal sanction is a unique one in American law. and the stigma, public condemnation and potential deprivation of liberty that go along with that sanction have traditionally demanded that it should be utilized only when identified mental states and behaviors are proven. Traditional criminal law encompasses various acts, which may or may not cause results, and mental states, which indicate volition or awareness on the part of the actor. These factors are commonly known as the requirements of actus reus and mens rea, Latin terms for an "evil-doing hand' and an "evil-meaning mind." Most efforts to codify the law of common-law jurisdictions employ a variety of requisite mental states, usually describing purpose, knowledge, reckless indifference to a consequence and, in a few instances, negligent failure to appreciate a risk.
With respect to what has now become known as over-criminalization, objections are focused on those offenses that go well beyond these traditional, fundamental principles and are grounded more on what were historically civil or regulatory offenses without the mental states required for criminal convictions. And the reason is evident. Without a clear mens rea requirement, citizens may not be able to govern themselves in a way that assures them of following the law, and many actors may be held criminally responsible for actions that do not require a wrongful intent.
Such strict liability in a criminal action, incidentally, does have a long history — almost 3,000 years ago an emperor of China is said to have decreed that it would be a criminal offense punishable by death for a governor of a province to permit the occurrence of an earthquake within the province. Even our own imperial Congress has not gone that far ... yet! And man's inability to control earthquakes, we have been reminded recently, can have tragic consequences.
Our Congress, however, has not been entirely modest. A recent report states that federal statutes provide for more than 100 separate terms to denote the required mental state with which an offense may be committed, and another review observes that 17 of the 91 federal criminal offenses enacted between 2000 and 2007 had no mens rea requirement at all. Such trends cannot continue, and suggested legislative reform in the nature of a default mens rea requirement when a statute does not require it is worthy of priority consideration.
Many scholars and the Department of Justice have tried to count the total number of federal crimes, but only rough estimates have emerged. The current estimate is a staggering 4,450 crimes on the books, with a projected additional 500 per year in years to come. If legal scholars and researchers and the Department of Justice itself cannot accurately count the number of federal crimes, how do we expect ordinary American citizens to be able to be aware of them?
One other matter: Since 1909, business entities have, with few limitations, routinely been held criminally liable for the acts of their employees. In recent history, one of the more significant cases involved the accounting firm of Arthur Andersen, in which the company effectively received a "death sentence" based on the acts of isolated employees over .1 limited period of time. In 2007 I gave a speech at the Georgetown Law Center in Washington regarding over-criminalization. I mentioned the Arthur Andersen case and referenced a political cartoon, published after the Supreme Court reversed the company's conviction, in which a man in a judicial robe was standing by the tombstone for Arthur Andersen and said, "Oops. Sorry." That apology didn't put the tens of thousands of partners and employees of that entity back to work. This unjust result simply cannot be replicated, and reform is needed to make sure there are no such future miscarriages of justice.
Moreover, I could cite the often-mentioned, truly absurd examples of federal over-criminalization, such as using the character of Smokey Bear or Woodsy Owl or the latter’s slogan — "Give a hoot; don't pollute!' — without authorization, or even the lesser known but equally absurd prohibition that you cannot "willfully injure" a shrub or a sink in any public building, ground or park in the District of Columbia. But, no matter how absurd, they fall far short of demonstrating the real harm done to real people by the process of over-criminalization.
Make no mistake. When individuals commit crimes, they should be held responsible and punished accordingly. The line has become blurred, however, on what conduct constitutes a crime, particularly in corporate criminal cases, and this line needs to be redrawn and reclarified. Over-breadth in corporate criminal law, for example, can lead to a near-paranoid corporate culture that is constantly looking over its shoulder for the long arm of the law and wondering whether a good-faith business decision will be interpreted by an ambitious prosecutor as a crime. Perhaps even more significant is the impact on corporate innovation -if an idea or concept is novel or beyond prior models, a corporation may stifle it if it is concerned about potential criminal penalties. This stifling may render some businesses unable to compete in a global marketplace just to ensure compliance with domestic laws. And that may mean fewer jobs and reduced economic growth in the United States.
The unfortunate reality is that Congress has effectively delegated some of its important authority to regulate crime in this country to federal prosecutors, who are given an immense amount of latitude and discretion to construe federal crimes, and not always with the clearest motives or intentions.
A striking recent example of over-criminalization is the now-discredited "theft of honest services" provision of the mail and wire fraud statute, 18 U.S.C. §1346, which was significantly narrowed recently by the U.S. Supreme Court in the high-profile United States v. Skilling and United States v. Black decisions. It was this statute, by the way, that formed the basis for the notorious prosecution of Dr. Cyril Wecht in Pittsburgh for felony counts relating, among other things, to his alleged use of an office fax machine and official vehicles for personal business. This statute was subject to scrutiny in the Skilling case because of its expansion from traditional public corruption cases to private acts in business or industry that are deemed to be criminal almost exclusively at the whim of the individual prosecutor who is investigating the case, becoming essentially a "moral compass" statute. I he-Supreme Court rejected the government's expansive view of the statute and returned the statute to its core purpose: prosecuting kickback and bribery schemes. Interestingly, the court went a step further and specifically cautioned Congress regarding creating further honest services statutes, stating that "it would have to employ standards of sufficient definiteness and specificity to overcome due process concerns." Another commendable decision came recently by a U.S. district judge when he dismissed an indictment and reminded the government of the courts purpose: "The Court is not an arbiter of morality, economics, or corporate conduct. Rather, it is an arbiter of the law." That signals to me a welcome judicial return to the rule of law.
On the other hand, Congress appears to be up to its old tricks. A recent assessment of the new Dodd-Frank Wall Street Reform and Consumer Protection Act finds that it creates dozens of new federal criminal offenses, many lacking adequate criminal-intent requirements that are ambiguous and duplicative of existing federal and state regulations.
What can be done to curb these abuses? I have both long- and short-term suggestions. First, I have advocated for many years that we adopt a true federal criminal code. While this may not be the first thing that comes to mind when analyzing the issues of concern in the criminal justice system, it is an important one that should be undertaken without delay. As I mentioned, there are now some 4,450 or more separate statutes, a hodgepodge scattered throughout 50 different titles of the U.S. Code without any coherent sense of organization. As one commentator noted, "[O]ur failure to have in place even a modestly coherent code makes a mockery of the United States' much-vaunted commitments to justice, the rule of law and human rights."
There is a template in existence, the Model Penal Code, which can act as a sensible start to an organized criminal code and has formed the basis for many efforts to establish state criminal codes in this country. What is needed is a clear, integrated compendium of the totality of the federal criminal law, combining general provisions, all serious forms of penal offenses and closely related administrative provisions into an orderly structure, which would be, in short, a true federal criminal code.
This is not a new idea. Congress has tried in the past to reform the federal criminal code, most notably through the efforts of the so-called "Brown Commission" in 1971. The legislative initiatives based on that commission's work failed despite widespread recognition of their worth. As assistant attorney general in charge of the Department of Justice's Criminal Division at the time, I well remember the disappointment felt among department leadership over the inability to focus the attention of legislative leaders on this important issue. And thus it has been ever since. It is therefore doubly incumbent on this Congress to seek to make sense out of our laws and make sure that average, ordinary citizens can be familiar with what conduct actually constitutes a crime in this country.
Second, Congress needs to rein in the continuing proliferation of criminal regulatory offenses. Regulatory agencies routinely promulgate rules that impose criminal penalties that have not been enacted by Congress. Indeed, criminalization of new regulatory provisions has become seemingly mechanical. One estimate is that there may be a staggering 300,000 criminal regulatory offenses created by U.S. government agencies.
This tendency, together with the lack of any congressional requirement that the legislation pass through judiciary committees, has led to an evolution of a new and troublesome catalog of criminal offenses. Congress should not delegate such an important function to agencies.
In this area, one solution that a renowned expert and my former colleague from the Department of Justice, Ronald Gainer, has advocated is to enact a general statute providing administrative procedures and sanctions for all regulatory breaches. It would be accompanied by a general provision removing all present criminal penalties from regulatory violations, except in two instances. The first exception would encompass conduct involving significant harm to persons, property interests and institutions designed to protect persons and property interests — the traditional reach of criminal law. The second exception would permit criminal prosecution, not for breach of the remaining regulatory provisions, but only for a pattern of intentional, repeated breaches. This relatively simple reform could provide a much sounder foundation for the American approach to regulatory crime than currently exists.
My third suggestion is that Congress should consider whether it is time to address the standards whereby companies are held criminally responsible for acts of their employees. The Department of Justice has issued four separate memoranda from deputy attorneys general during the past 10 years setting forth ground rules for when a corporation should be charged criminally for the acts of its employees. It should be noted that in the most recent memorandum, the government stated that "t may not be appropriate to impose liability upon a corporation, particularly one with a robust compliance program in place, under a strict respondeat superior theory for the single isolated act of a rogue employee." A law is needed to ensure uniformity in this critical area so that the guidelines and standards do not continue to change at the rate of four times in 10 years. Indeed, if an employee is truly a rogue or acting in violation of corporate policies and procedures, Congress can protect a well-intentioned and otherwise law-abiding corporation by enacting a law that specifically holds the individual rather than the corporation responsible for the criminal conduct without subjecting the corporation to the whims of any particular federal prosecutor.
One other aspect of over-criminalization should not escape our notice. A former colleague of mine at the Justice Department noted that there is something self-defeating about a society that seeks to induce its members to abhor criminality but simultaneously brands as criminal not only those engaged in murder, rape and arson, but also those who dress up as Woodsy Owl, sell mixtures of two kinds of turpentine, file forms in duplicate rather than triplicate or post company employment notices on the wrong bulletin boards. The stigma of criminal conviction is dissipated by such enactments and the law loses its capacity to reinforce moral precepts and deter future misconduct. Our criminal sanctions should be reserved for only the most serious transgressions and to do otherwise, in fact, can cause disrespect for the law.
While nearly all of the remedies I have suggested would require legislative action, there are some steps that could be taken by the Department of Justice itself to aid in the process of reducing over-criminalization. Let me mention just three.
First, the department should require pre-clearance by senior officials of novel or imaginative prosecutions of high-profile defendants. One of U.S. Supreme Court Justice Antonin Scalia’s major objections to the "honest services" fraud theory, for example, was its propensity to enable "abuse by headline-grabbing prosecutors in pursuit of [those] who engage in any manner of unappealing or ethically questionable conduct." A second look before bringing any such proposed prosecutions would, I suggest, be very much in order.
Second, a revitalized Office of Professional Responsibility within the Department of Justice should help ensure that rogue prosecutors are sanctioned for overreaching in bringing charges that go well beyond the clear intent of the statute involved.
Finally, of course, the department should actively support, as a matter of policy, the effort to enact a true criminal code.
With respect then to the problem of over-criminalization, let me summarize. Reform is needed. True crimes should be met with true punishment. While we must be tough on crime, we must also be intellectually honest. Those acts that are not criminal should be countered with civil or administrative penalties to ensure that true criminality retains its importance and value in our legal system. And the Department of Justice must police those empowered to prosecute with greater vigor.
These are changes that truly merit our attention if we are to remain a government of laws and not of men. And they merit attention by all three branches of government — the legislative, the executive and the judicial — if productive change is to be forthcoming. ♦
DickThornburgh is the former governor of Pennsylvania and the former attorney general of the United States. He currently is of counsel to the Washington, D.C., office of K&L Gates L.L.P. This article was adapted from his remarks to the Pittsburgh Legal Administrators Association earlier this year.
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The article published in "The Penssylvania Lawuer" magazine, November/December 2011, p. 36-41
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