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  • Legal Memorandum posted August 12, 2014 by Evan Bernick, Paul Larkin, Jordan Richardson Is Congress Addressing Our Overcriminalization Problem? Reviewing the Progress of the Overcriminalization Task Force

    There is widespread agreement across the political spectrum that the criminal justice system needs to be reformed in several respects. One of the areas in need of correction is the overuse and misuse of substantive criminal law, a problem known by the neologism “overcriminalization.”[1] In May 2013, the bipartisan Overcriminalization Task Force, authorized by the House…

  • Legal Memorandum posted June 12, 2014 by Evan Bernick, Paul Larkin Filming the Watchmen: Why the First Amendment Protects Your Right to Film the Police in Public Places

    Brandy Berning spent the night in a Florida jail because she used a cell phone to film a traffic stop on I-95.[1] George Thompson of Fall River, Massachusetts, claimed that he was verbally abused, arrested, and locked up overnight for filming a profane police officer with a cell phone from his front porch. The officer was across the street in full view and within earshot…

  • Legal Memorandum posted June 9, 2014 by Paul Larkin Closing the Door to Foreign Lawsuits: Daimler AG v. Bauman

    Midway through its October 2013 term, on January 14, 2014, the Supreme Court of the United States decided a case that will make its way into every civil procedure casebook, Daimler AG v. Bauman.[1] The plaintiffs, residents and citizens of Argentina and Chile without any connection to the United States, initiated a federal court lawsuit in California against Daimler AG, a…

  • Legal Memorandum posted May 9, 2014 by Paul Larkin The Extent of America’s Overcriminalization Problem

    The Heritage Foundation and others have criticized the modern-day phenomenon known as “overcriminalization,”[1] the neologism given to the overuse and misuse of the criminal law.[2] Those criticisms have taken several forms: Legislatures pass too many statutes creating crimes (especially federal offenses); legislatures too frequently empower administrative agencies to…

  • Commentary posted March 24, 2014 by Paul Larkin Reviewing the Rationale for Stop-and-Frisk

    Any angler will tell you: “If you want to catch fish, you have to go where the fish are.” The same is true when fishing for street crime. In the case of crack cocaine, you need to focus on urban, poor, African-American neighborhoods, because trafficking is primarily the work of dealers in those communities. The U.S. Sentencing Commission, Harvard Law School Professor…

  • Commentary posted March 24, 2014 by Paul Larkin Program offers HOPE for repeat drug offenders

    American prisons hold more than 1.5 million convicts. Ninety-five percent of them will return to the community at some point, and few will be better off than when they have left it. One of the holy grails of correctional policy has been to find an alternative to imprisonment that has teeth but doesn’t bite off a leg. Probation has been the traditional alternative, but…

  • Legal Memorandum posted February 28, 2014 by Paul Larkin The Hawaii Opportunity Probation with Enforcement Project: A Potentially Worthwhile Correctional Reform

    Over the past 40 years, America has sent an increasingly large number of offenders to prison.[1] Approximately 95 percent of them will eventually return to the community.[2] Some will be released early via parole, an accumulation of good-time or earned-time credits, or executive clemency.[3] The truly lucky offenders, however, are the ones who are placed on probation, a…

  • Commentary posted February 26, 2014 by Paul Larkin There’s a clear need to re-examine sentencing policies

    The law, like a pendulum, sometimes moves from one extreme to another. For most of the 20th century, Congress gave federal judges wide discretion to select the punishment to be given to a particular defendant in a case. Typically, lawmakers set a maximum on the range of applicable penalties, such as “no more than five years’ imprisonment.” Beginning in the 1980s,…

  • Legal Memorandum posted February 19, 2014 by Paul Larkin Domestic Abuse on Indian Reservations: How Congress Failed to Protect Women Against Violence

    Congress passed the Violence Against Women Act (VAWA) [2] in 1994 in part to authorize various federally funded anti-violence programs.[3] Last year, Congress passed a VAWA reauthorization bill. A provision in the statute, Section 904, grants Indian tribal courts concurrent jurisdiction over certain criminal charges of domestic abuse filed against non-Indians.[4] While…

  • Issue Brief posted February 10, 2014 by Paul Larkin Supplying the Information Required by Law: Directing the Federal Government to Identify All Federal Criminal Laws

    The Heritage Foundation has been concerned about the problem of overcriminalization for years. Most (but not all) of the papers that it has published on that subject have criticized Congress for passing unnecessary or unsatisfactory criminal laws. But Heritage also has given credit where credit was due.[1] Recently, Heritage witnessed another creditworthy event. Two…

  • Legal Memorandum posted February 10, 2014 by Evan Bernick, Paul Larkin Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms

    Is justice best served by having legislatures assign fixed penalties to each crime? Or should legislatures leave judges more or less free to tailor sentences to the aggravating and mitigating facts of each criminal case within a defined range? The proliferation in recent decades of mandatory minimum penalties for federal crimes, along with the tremendous increase in the…

  • Legal Memorandum posted January 9, 2014 by Paul Larkin Why U.S. Citizens Should Not Be Branded as U.S. Criminals for Violating Foreign Law

    The Lacey Act[1] is a federal statute governing the importation of flora and fauna into the United States from foreign nations. It is an excellent example of taking a good idea—e.g., protecting importation of the hides of endangered animal species—and stretching it to unreasonable lengths. Specifically, the act demands that a person who imports flora or fauna from a…

  • Legal Memorandum posted September 19, 2013 by Paul Larkin The Fourth Amendment and New Technologies

    Law is the formal embodiment of rules that legislators, regulators, and judges etch into statute books, administrative manuals, and judicial decisions. It is unavoidable and desirable to see the law change as technology becomes increasingly sophisticated. Before there were automobiles and aircraft, there was no need for a law prohibiting their theft.[1] Similarly, before…

  • Legal Memorandum posted August 14, 2013 by Paul Larkin, Daniel J. Dew Making Crime Fighting a Team Effort: Cross-Designating Federal Law Enforcement Officers as State Officers

    The Heritage Foundation has long criticized the phenomenon of overcriminalization[1] and has offered several solutions to the problems that overcriminalization causes.[2] This Legal Memorandum proposes another possible solution: Rather than enact new federal legislation creating new federal crimes, Congress should direct the Attorney General to work out arrangements with…

  • Legal Memorandum posted July 31, 2013 by Paul Larkin “Sauce for the Goose Is Sauce for the Gander”: Treating Private Parties and Government Officials Alike Under the Criminal Law

    While Congress is principally responsible for overcriminalization,[1] the federal courts deserve their share of the blame.[2] In their readiness to interpret federal statutes broadly, the federal bench has created expansive rules of direct and vicarious criminal liability.[3] In that process, however, the courts have not stopped to ask the question, “Should the same rules…