January 9, 2009 | Special Report on Legal Issues
As President, I will...work every day to ensure that this country has a criminal justice system that inspires trust and confidence in every American, regardless of age, or race, or background.
--Barack Obama, Howard University, September 28, 2007
President-elect Obama, during your campaign, you promised to improve the administration of criminal justice for all Americans without limitation. This promise is vital because criminal punishment is the greatest power that government routinely uses against its own people. Every expansion of the federal criminal law beyond its proper bounds, and every unjust federal criminal offense, is an exercise of raw governmental power that undermines Americans' trust and confidence in the justice system.
For centuries, citizens faced only a few dozen criminal offenses, but in recent decades the number of federal criminal offenses has proliferated beyond almost all constitutional and prudential bounds. Worse, many of these criminal offenses are improper and unjust exercises of federal power. The Supreme Court has frequently stated that the federal government lacks a plenary or general police power, yet hundreds of federal criminal offenses cover subjects that the Constitution reserves to the authority of state and local jurisdictions. Hundreds more lack meaningful criminal-intent requirements to protect from unjust criminal punishment those Americans who may violate a law or regulation only accidentally or inadvertently, without any criminal intent.
Compounding the problem, federal policies and practices for investigating and prosecuting crime have become increasingly aggressive at the expense of fundamental protections against unjust criminal process. For the past decade, both the attorney-client relationship and the attorney-client privilege on which it is founded have been under attack by the Justice Department and other federal law enforcement agencies. In addition, unlike the grand jury systems in some reform-minded states, the federal grand jury system provides fewer protections against unwarranted prosecution and serves primarily as a vehicle that prosecutors can use to secure an indictment.
When it comes to federal criminal-justice reform, advocates and media commentators have typically directed the public's attention to proposed changes in sentencing and incarceration policy that would primarily benefit isolated classes of offenders. Some of these reforms may indeed be needed, but--in accordance with your campaign promise--you should focus your Administration's efforts on principled, nonpartisan reforms that benefit all Americans.
To inspire the widest possible trust and confidence in the federal criminal justice system, you and your Administration should:
Others may be studied, but reforms such as these enjoy broad support, including support from high-ranking Justice Department officials who served in past Administrations and such professional organizations as the American Bar Association.
Because they respect and restore basic principles on which all criminal law should rest, proposals for criminal-law reform such as those outlined above have broad support across the political and ideological spectrum. Nonpartisan coalitions are already in place to pursue and promote these reforms, and your Administration should work with these Left-Right coalitions to implement them.
Further, these principle-based reforms benefit all Americans suspected of or charged with a crime. They are thus not as susceptible to the politicization that has infected most criminal justice policy. Implementing them will inspire Americans' trust and confidence in the federal criminal justice system and fulfill your campaign promise to do so.
Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.
"Remarks of Senator Barack Obama: Howard University Convocation,"
Washington, D.C., September 28, 2007, at http://www.barackobama.com/2007/09/28/re
marks_of_senator_barack_obam_26.php(January 2, 2009).
 See Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv. L. Rev. 1097, 1098 (1952) ("Whatever view one holds about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals.").
 To cite just one recent benchmark, Louisiana State University law professor John Baker, Jr., recently completed a Heritage Foundation study to number the criminal offenses in the United States Code and assess federal offenses' criminal-intent requirements. John S. Baker, Jr., Revisiting the Explosive Growth of Federal Criminal Law, Heritage Foundation LegalMemorandum No. 26, June 16, 2008. Baker's research showed that 17 of the 91 entirely new criminal offenses that Congress added to the United States Code from 2000 through 2007 included no criminal-intent requirement whatsoever. Id. at 7.
 See Model Penal Code § 2.02(1), (3), (4).
 Cf. United States v. Flores-Figueroa, No. 08-108, 2008 WL 2855747 (Jul, 22, 2008) (petition for writ of certiorari) (asking the Supreme Court to determine whether the "knowingly" criminal-intent term in 18U.S.C. §1028A(a)(1) protects Flores-Figueroa, who pleaded guilty to two immigration-related offenses, from a two-year sentencing increase for "aggravated identity theft" in the absence of evidence that he knew the Social Security number he was using actually belonged to someone else).
 United States v. Bass, 404 U.S. 336, 348 (1971) (quoting Judge Henry Friendly).
 See United States v. Rodriguez, 128 S. Ct. 1783, 1800 (U.S. 2008) (Souter, J., dissenting).
 U.S. Dep't of Justice, Federal Prosecution of Corporations, Memorandum from Deputy Attorney General Eric Holder to All Component Heads and United States Attorneys §§ II, VI.B. (June 16, 1999) (on file with the Department of Justice) (authorizing prosecutors to request waivers of attorney-client privilege and encouraging them to factor companies' compliance with such "requests" into indictment decisions).
 Id. (directing prosecutors to make an apparently independent pre-indictment determination of employees' criminal culpability and to consider a management decision to provide Legalcounsel to such "culpable" employees to be additional grounds for indicting the entire company).
 See, e.g., United States v. Stein, 541 F.3d 130, 155-57 (2d Cir. 2008).
 U.S. Department of Justice, U.S. Attorneys' Manual §§ 9-28.710 (stating that "prosecutors should not ask for such waivers and are instructed not to do so"), 9-28.720 ("Eligibility for cooperation credit is not predicated upon the waiver of attorney-client privilege or work product protection.").
The Securities and Exchange Commission issued a new Enforcement
Manual in October 2008 with language placing some limits on the
ability of SEC staff to engage in practices similar to those
formerly authorized by the Holder memorandum and its successors.
See SEC Enforcement Div., Enforcement Manual § 4.3
(Oct. 6, 2008), available at http://www.sec.gov/divisions/enforce
/enforcementmanual.pdf. But important loopholes undermine the effectiveness of this limiting language.
 See Floor Statement of Robert C. "Bobby" Scott, Chairman, Subcommittee on Crime, Terrorism, and Homeland Security, House Judiciary Committee, in Support of H.R. 3013, the "Attorney-Client Privilege Protection Act," Sep. 27, 2008.
 Julie R. O'Sullivan, The Federal Criminal "Code" Is a Disgrace: Obstruction Statutes as Case Study, 96 J. Crim. L. & Criminology 643, 643 (2006) (citations omitted).
 See Chris Sullentrop, "The Right Has a Jailhouse Conversion," N.Y. Times, Dec. 24, 2006 (quoting then-U.S. Senator Barack Obama describing how some members of the Illinois state legislature factored election-year politics into their decisions about whether to increase criminal penalties).
 See United States v. Morrison, 529 U.S. 598, 618 (2000).
 Crim. Law Div., Am. Bar Ass'n, The Federalization of Criminal Law 2 (1998). The ABA Task Force was composed of 17 academics, former prosecutors, Justice Department officials who served in Democrat and Republican Administrations, and Members of Congress of both major parties. Its final report was unanimous.
 Baker, supra note 3, at 1, 5.
 John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"? Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193, 216 (1991).
 United States v. Calandra, 414 U.S. 338, 343 (1974).
 Former Secretary of Labor Raymond J. Donovan famously captured the destructive effect of mere indictment when, after a jury acquitted him and each of his co-defendants of charges based on the government's tenuous theory of criminal culpability, he asked, "Which office do I go to, to get my reputation back?" Selwyn Raab, "Donovan Cleared of Fraud Charges by Jury in Bronx," N.Y. Times, May 26, 1987, at A1.
 See Arthur Andersen LLP v. United States, 544 U.S. 696, 698, 706-08 (2005). Despite the U.S. Supreme Court's reversal of the firm's conviction, the 28,000 partners and employees of international accounting giant Arthur Andersen lost their careers and everything they had invested in the firm when federal prosecutors destroyed it by indicting the firm on a hyper-aggressive and fallacious Legaltheory of the entire firm's criminal culpability for the allegedly wrongful conduct of a handful of its employees.
 Prosecutors and Legalscholars alike have acknowledged that the saying in essence is correct that if a prosecutor were to ask nicely, a grand jury would indict a ham sandwich. See "The Supreme Court, 1991 Term: Independence of the Grand Jury," 106 Harv. L. Rev. 191, 199-200 (Nov. 1992) (unsigned article); Martin S. Himeles, Jr., Op-Ed., "How to Indict a Ham Sandwich," Wash. Times, Aug. 18, 1999.
 See Paul Rosenzweig, "Time Is Now for Federal Grand Jury Reform," The Heritage Foundation, Feb. 21, 2003.
See Nat'l Ass'n of Crim. Defense Lawyers, Report of
Commission to Reform the Federal Grand Jury (undated), available
form/grandjuryreform?opendocument (citing support of former Deputy Attorney General Larry S. Thompson and other former Justice Department officials and federal prosecutors).