May 23, 2002

May 23, 2002 | News Releases on Legal Issues

Heritage Foundation to Tackle Trend to 'Over-Criminalize" Law

WASHINGTON, May 23, 2002-Increasingly, just as tort lawyers seek to make claims of negligence out of virtually any mishap that befalls their clients, Congress has enacted criminal penalties for regulatory matters involving relatively minor infractions.

This trend has become so troubling that officials at The Heritage Foundation have announced a new program today to examine the extent to which such "over-criminalization" erodes public confidence in the justice system and erects a costly impediment to doing business in America.

Heritage, a public policy research institute based in Washington, D.C., plans to take a lead role in fighting what former U.S. Attorney General Edwin Meese III called "bracket-creep across the spectrum of allegedly wrongful acts."

Meese, the chairman of Heritage's Center for Legal and Judicial Studies, said that moral wrongs-formerly punishable by peer pressure or social ostracism-have become civil wrongs, leading to an explosion in civil litigation. And now, he said, "Regulations promulgated and enforced by unaccountable bureaucrats have transformed many civil wrongs into criminal wrongs, causing fundamentally unfair prosecutions that our new project will endeavor to stop."

The Heritage initiative, headed up Paul Rosenzweig, a former federal prosecutor who worked in Independent Counsel Kenneth Starr's office, will highlight abuse of the criminal process, call for state and federal laws to curb the power of regulators and other non-elected government workers to decide what is criminal and whom should be prosecuted, and sponsor conferences and research examining the misuse of the criminal process.

The program, Rosenzweig said, will seek to "roll back the deterioration of time-honored principles of the rule of law that has taken place in recent years." Traditionally in English common law, what was illegal-punishable by criminal sanctions-was limited to sufficiently serious and inherently bad acts, and judges interpreted criminal statutes as narrowly as possible and resolved any ambiguity in favor of defendants, Rosenzweig said. The U.S. Constitution enshrined this tradition in the Fourth, Fifth and Sixth Amendments, he said.

However, Congress and state legislatures have begun to blur the differences and to punish civil violations and regulatory matters as crimes, Rosenzweig said. For instance, of the 3,000 federal crimes on the books, more than a third (1,200) have been created since 1970, and few of the new crimes have anything to do with traditional federal offenses such as bribery, theft or counterfeiting, he said.

Indeed, Congress sometimes makes it a criminal offense to violate agency regulations that have not yet been promulgated, Rosenzweig said, which gives bureaucrats the power to criminalize whatever they think is necessary.

"The reasoning behind this approach is four-fold," Rosenzweig said. "It enables politicians to appear to be 'doing something.' It helps prosecutors get publicity. It lets agency officials gain authority and job security. And it allows activist groups to gain ground against business interests." The legal problem, he noted, is that "it also renders unnecessary any proof of criminal intent, a key element to prosecution in the English and American systems."

As part of Heritage's new program, the organization plans to: remind academic and political leaders of the historical and moral foundations of criminal law; document the trend toward over-criminalization; change how prosecutors choose which cases to press, and calculate the societal costs of misuses of the criminal process.

"Absent coordinated opposition and principled leadership, the trend of excess criminalization will continue, further eroding the personal freedoms and economic liberties we hold dear as Americans," said Meese. "We are optimistic this project will take a substantial first step toward reversing this insidious trend and restore the proper foundations of criminal law."

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