August 22, 2008
By Edwin Meese III
A recent brochure from the National Federation of Independent
Business Legal Defense Fund depicts a business man, dressed in a
jail-type orange jumpsuit, sitting opposite his lawyer in a prison
visiting room. The caption reads, "This could be your next business
It's no joke. Increasingly, business people in the United States
are being targeted by Congress, federal enforcement agencies and
Newly created crimes attach serious penalties to conduct which
has never before been considered a criminal offense. That means
average "law-abiding" Americans can now find themselves facing
criminal investigation or even prosecution. Moreover the
protections traditionally available to safeguard those charged with
crimes have been greatly eroded.
Traditionally, English and American law required proof beyond a
reasonable doubt of two fundamental elements to convict a person of
a crime: The defendant must have committed a particular type of act
forbidden by law (usually something that practically all civilized
society has considered inherently wrongful), and there must have
been the intent to commit the act. These substantive requirements
limited the government's power to punish. For example, they assured
that unintentional or unknowing acts would not result in criminal
Yet over the past few decades, an unprecedented expansion of
criminal law has, in certain criminal statues, largely eliminated
these substantive checks on government power. Today, criminal law
covers many areas of conduct that are neither inherently wrongful,
nor committed with any wrongful intent.
Accompanying this expansion of criminal law is the tremendous
growth of government regulation that has taken place since the
1930s. How bad is it? So bad that no one can tell for sure how many
federal crimes are on the books.
But this much we know: In addition to some 4,500 specific crimes
enacted by Congress, there are an estimated 10,000 regulations,
promulgated by executive branch regulatory agencies, each of which
carries a criminal penalty for violation.
The sheer volume of the criminal law ensures that it is
virtually unknowable by citizens and government officials alike. As
a result, almost anyone - especially those in business - can find
themselves inadvertently on the wrong side of the law.
Nowadays, making a mistake on a government-mandated form,
failing to comply with obscure environmental regulations, or even
running afoul of highly dubious foreign regulations, can get you
Even worse, managers can be convicted if a person under their
general supervision commits a crime - even when the offending act
was done without the manager's knowledge or against the manager's
When a spectacular case makes news headlines, too frequently
Congress will carelessly pass a new law. Usually, it's unnecessary.
Often, it's so broadly worded that it can just as easily imperil
the innocent as punish the guilty.
But the multiplicity of criminal offenses isn't the only thing
that might ensnare the unknowing business person. The way these
laws are sometimes enforced, the failure to observe procedural
safeguards and over-zealous prosecutions combine to increase the
potential that innocent people in the business community will be
trapped by the criminal justice system.
In some cases, business executives have been coerced into
waiving the attorney-client privilege, which is an important
bulwark against miscarriages of justice. Some have been treated
like "Mafia kingpins," subjected to Racketeering-Influences Corrupt
Organizations (RICO) prosecution for matters that have nothing to
do with the original purpose of that law, which was supposed to
pertain to criminal syndicates.
Multiple charges under separate counts are brought for
essentially the same act. Counts of "money-laundering" are added to
unrelated charges, thus increasing the possible sentence. The
purpose of these tactics is to coerce a plea, regardless of
Most prosecutors are conscientious and fair. But for some, the
temptation of a vast array of possible crimes and the availability
of over-reaching tactics is too great. Forgetting that their
primary responsibility is to see that justice is done, they will
seek a conviction at the expense of justice.
Over-criminalization and over-zealous prosecutions constitute a
troubling expansion of government power. As such, they pose a great
threat to individual liberty. Without limits protecting citizens
from the haphazard application of criminal punishment, law becomes
a tool of oppression rather than protection.
That is why The Heritage Foundation has a major project going
forward to correct the "over-criminalization" of the law and to
restore the procedural safeguards and traditional concepts of
justice that have long protected the innocent and have ensured the
liberty of the American people.
who served as U.S. Attorney General under President Reagan, is
Chairman of The Heritage Foundation's Center for Legal and Judicial
First appeared in DCExaminer.com
A recent brochure from the National Federation of Independent Business Legal Defense Fund depicts a business man, dressed in a jail-type orange jumpsuit, sitting opposite his lawyer in a prison visiting room. The caption reads, “This could be your next business conference!”
Rule of Law Initiative of the Leadership for America Campaign
Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
Read More >>
Request an interview >>
Please complete the following form to request an interview with a Heritage expert.
Please note that all fields must be completed.
Heritage's daily Morning Bell e-mail keeps you updated on the ongoing policy battles in Washington and around the country.
The subscription is free and delivers you the latest conservative policy perspectives on the news each weekday--straight from Heritage experts.
The Morning Bell is your daily wake-up call offering a fresh, conservative analysis of the news.
More than 200,000 Americans rely on Heritage's Morning Bell to stay up to date on the policy battles that affect them.
Rush Limbaugh says "The Heritage Foundation's Morning Bell is just terrific!"
Rep. Peter Roskam(R-IL) says it's "a great way to start the day for any conservative who wants to get America back on track."
Sign up to start your free subscription today!
The Heritage Foundation is the nation’s most broadly supported public policy research institute, with hundreds of thousands of individual, foundation and corporate donors. Heritage, founded in February 1973, has a staff of 275 and an annual expense budget of $82.4 million.
Our mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense. Read More
© 2013, The Heritage Foundation Conservative policy research since 1973