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Slimming the Federal Criminal Code

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Gary Fields and Neil King report in the WSJ:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats. It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.
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Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force. He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

Efforts at criminal law reform are often covers for people whose real agenda is to repeat the disastrous soft-on-crime mistakes of the 60s and 70s (e.g., California's realignment), so my skeptical antenna goes up immediately.  However, the fact that sensible Sensenbrenner is chairing the committee is reassuring.

Our main concern here at CJLF is with acts that every rational person agrees should be criminal, such as murder, rape, robbery, and burglary.  "Overcriminalization" is the use of criminal law to address issues that should be civil matters, and we are okay with efforts to prune that back.  Indeed, the moral force of the criminal law is enhanced by reserving it for genuinely evil acts with evil intent.  It is diluted by extending it to lesser transgressions and by blurring the distinction between intent and error. 

In addition, most crimes should be matters of state law, and as all-weather federalists we are fine with efforts to trim federal law back to its proper territory.  If the committee comes up with proposals to address these issues without going soft on crimes that genuinely deserve strong punishment and genuinely should be federal, it can make a positive contribution.

2 Comments

The first things to go should be strict liability crimes, i.e., those that do not require criminal intent. As Kent correctly implies, the whole moral force of criminal law depends on punishing those with a guilty mind, not all those who create social harms without intending to. The latter should have to pay up for sure, but using the criminal law to do it is the path to tyranny. And it's a faster path than ever with the growth of the nanny/administrative/regulatory state.

Kent is also correct in being leery, however. I suspect more than a few on this committee (say, Bobby Scott) just want to give a free ride to drug pushers.

I think the idea of preventing the excessive entanglement of the criminal code is a proper framework when presented with these ideas as well:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2251994

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