Cries of Federal 'Overcriminalization' Gain Volume

While this debate might seem of more interest to academics and politicians, it has practical applications for criminal defense lawyers. Arguing that your client is being prosecuted under a statute that criminalizes honest conduct can resonate with a jury that is already suspicious of the federal government. Additionally, and perhaps more practically, overcriminalization arguments may persuade federal prosecutors to decline criminal charges in favor of administrative or civil penalties.

The overcriminalization movement includes a broad spectrum of political actors and groups. On the political right, former Attorneys General Ed Meese and Dick Thornburgh are among its most vocal and well-known advocates. On the left, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers are both ardent overcriminalization advocates. Both sides are correct in as much as the federal criminal law now reaches a staggering variety of activities. In 1789, there were three federal crimes: treason, piracy and counterfeiting. Now, there are more than 4,500 federal crimes, as well as several hundred thousand regulations, the violation of which can be criminal. There are people in federal prison for illegally importing lobsters. The issuance of a false weather report, the misuse of the Woodsy Owl symbol and wearing a postal uniform in a theatrical production are all federal crimes. In addition to inviting ridicule, the overbreadth of federal criminal law can stifle innovation and lead to a corporate culture that worries whether good faith business decisions will be interpreted by ambitious prosecutors as criminal.