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
--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
To inspire the widest possible trust and confidence in the
federal criminal justice system, you and your Administration
- Add basic protections against unjust
punishment. For centuries, the Anglo-American legal system
has defined a crime to require both a guilty act (actus
reus) and a guilty mind (mens rea). The latter is
commonly referred to as a criminal intent requirement: To win a
conviction, the government must prove beyond a reasonable doubt
that the accused acted with criminal intent. Today, however,
Congress increasingly fails to include a meaningful criminal-intent
requirement in new criminal offenses that it enacts.
Without a meaningful criminal-intent requirement, Americans who
never intended to commit a crime--even those who violated a
prohibition literally by accident--may nonetheless be convicted and
punished as criminals.
To protect innocent Americans, new provisions should be added to
federal law specifically directing federal courts to grant a
criminal defendant the benefit of the doubt when Congress fails to
speak clearly in its definition of criminal offenses and penalties.
The American Law Institute's Model Penal Code includes key
provisions standardizing how courts interpret criminal statutes
that have unclear or nonexistent criminal-intent requirements.
Federal law should include similar provisions. One such provision
would apply a default criminal-intent requirement to criminal
statutes that lack any such requirement. A second would mandate
that any introductory or blanket criminal-intent requirement be
applied to all material elements of the offense.
Although it would be unwise to do so, Congress would remain free
to enact criminal offenses without meaningful criminal-intent
requirements. But Congress would have to make this purpose clear in
the text of the statute. This reform would thus enable law-abiding
Americans to know which conduct carries an unavoidable risk of
criminal punishment (i.e., is act-at-your-peril conduct) and which
conduct they may safely engage in as long as they have every
intention of following the law.
The common-law rule of lenity operates in a similar fashion to
protect defendants from conviction under expansive interpretations
of criminal provisions. It generally provides that ambiguities in a
criminal statute (i.e., when it can reasonably be interpreted to
define either a broader or a narrower offense) are to be resolved
in favor of the defendant. The rule is based on the commonsense
notion of justice that no one "should...languish in prison unless
the lawmaker has clearly said they should." It applies when the
"metes and bounds" of a criminal offense, the language defining the
severity of the offense, or both are ambiguous.
Codifying the rule of lenity would reduce uncertainty in federal
criminal law; narrow the scope of legal issues that the parties
must litigate, both at trial and in the federal appellate courts;
and require that Congress be clear when it defines a criminal
offense. Americans are entitled to no less protection of their
- Protect Americans' relationship with their
attorneys. Individuals and organizations across the
political spectrum have long decried federal policies and practices
that have been eroding the protections granted by the
attorney-client privilege and the attorney-client relationship.
These policies originated with the 1999 memorandum issued by your
Attorney General nominee, then-Deputy Attorney General Eric
Holder. The text and subsequent implementation of
the Holder memorandum coerced organizations to waive the venerable
attorney-client privilege in order to reduce their chances of being
indicted for the allegedly criminal conduct of any employee. The
memorandum also pressured organizations either to violate any
commitment they had made to pay employees' legal fees or to face a
greater likelihood of indictment.
Such policies, though perhaps well-intentioned, resulted in a
federal law enforcement culture in which it is expected (even when
not demanded) that a company under investigation waive privileges,
cut off legal fees, and take similar steps to limit their
employees' ability to defend themselves. Since 1999, employees have
been pressured into giving potentially incriminating statements to
government agents without having their attorneys present.
A wide range of organizations, from the American Bar Association
to the American Civil Liberties Union to the U.S. Chamber of
Commerce, have worked together for several years to change these
policies. As a result, and to forestall legislation, current Deputy
Attorney General Mark Filip announced changes in the U.S.
Attorneys' Manual last August thatinstruct federal prosecutorsthat
they may no longer use coercive tactics to persuade companies to
waive their rights to their attorney-client privilege and related
protections. Nor may prosecutors coerce companies to
violate employees' constitutional rights or to pressure employees
to waive such rights on their own. If actually and fully
implemented by all federal prosecutors,the new guidelines
shouldsubstantially reduce violations of the rights of companies
and their employees.
While the new policy is a substantial improvement over the Justice
Department's previous policies, by its terms it applies only to
federal prosecutors in U.S. Attorneys' Offices, includes exceptions
that are likely to undermine its effectiveness, and has no effect
on similar harmful policies that have been adopted byseveral other
federal agencies since the Holder memorandum was issued. The
Department's policy, standing alone, thus does not fully solve the
problem of government-coerced waivers and violations of employee
rights.What is needed is a permanent solution with the force of law
that applies to all federal agencies--i.e., comprehensive
legislation with provisions like those in the bipartisan
Attorney-Client Privilege Protection Act that passed the House last
year by unanimous voice vote.
- Reform the Federal Criminal Code. As
Georgetown law professor Julie O'Sullivan has concluded, the
federal criminal law does not even qualify to be called a criminal
code. It is instead "an 'incomprehensible,' random and incoherent,
'duplicative, ambiguous, incomplete, and organizationally
nonsensical' mass of federal legislation that carries criminal
penalties." Criminalization has become extremely
popular. As you have previously noted, many candidates run
campaigns based on greater criminal penalties and more criminal
offenses. This is true even of candidates for
national office, despite the fact that, as the Supreme Court has
frequently noted, the Constitution does not grant the federal
government a plenary police power.
In its final report, the American Bar Association Task Force on
the Federalization of Crime, chaired by former Attorney General
Edwin Meese III, reported that it had been "told explicitly by more
than one source that many...new federal laws are passed not because
federal prosecution of these crimes is necessary but because
federal crime legislation in general is thought to be politically
popular." Many Members of Congress apparently will
not vote against crime legislation "even if it is misguided,
unnecessary, and even harmful."
Federal criminal law thus has proliferated without rhyme or
reason, and often with little evidence that the fundamental nature
and proper boundaries of criminal law have been taken into account.
Today, there are at least 4,450 criminal offenses in the federal
code, and Columbia law professor John Coffee
has noted that criminal charges may be brought for the violation of
an estimated 300,000 federal regulations. As discussed above, many
federal criminal offenses include no meaningful
criminal‑intent requirement at all.
To give Americans a reasonable opportunity to understand what the
criminal law requires of them before they act and later discover
that the federal government deems them to be criminals, your
Administration should support the bipartisan efforts already
underway to make the federal criminal code smaller and more
understandable. The first step is to eliminate provisions that have
not been charged (or that have been charged only rarely) during the
past 10 years as well as those held to be unconstitutional. This
recodification should also:
1. Collect all similar criminal offenses (such as all offenses
covering conduct resulting in a victim's death) in a single chapter
of the United States Code;
2. Consolidate criminal provisions that overlap in whole or in
3. Eliminate provisions that are blatant exercises of federal
power in areas that the Constitution has reserved to the
A primary goal of this reform would be to impose structure and
coherence on the federal criminal law, making it more like a real
criminal code. This proposed reform, if conducted under your
leadership with appropriate bipartisan involvement and support,
would lay the groundwork for more substantive reforms that are of
interest to and acceptable to both Democrats and Republicans,
liberals and conservatives.
- Pursue federal grand jury reform. The Fifth
Amendment protects Americans' right to indictment by a grand jury
because the grand jury is supposed to serve as a "protector of
citizens against arbitrary and oppressive governmental action."
Even if an individual is cleared of all charges and found not
guilty, federal indictment by itself often works severe and
irreparable damage to his career and reputation. Entire business
organizations can be destroyed by a federal indictment even if the
U.S. Supreme Court later determines that the legal theory on which
federal prosecutors based their charges was erroneous.
And defending against an unjust indictment can easily wipe out all
of a defendant's financial resources.
Today, however, the federal system lacks important rights for
grand jury targets and suspects, and it no longer serves as the
bulwark against unjust prosecution that it did when the Fifth
Amendment was adopted. Proposals for federal grand jury reform
should be examined in a careful and deliberate manner and should
focus initially on two important protections:
1. Without allowing defense attorneys to object or otherwise
participate in the proceedings, your Administration should work
with Congress to experiment with allowing subjects and targets of
federal grand jury investigations to have their attorneys present
in the grand jury room.
2. Absent exceptional circumstances, federal criminal defendants
should be provided with transcripts of the entire grand jury
proceedings, including all evidence and all statements made by
prosecutors in the grand jury's presence.
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.
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.").
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
United States v. Bass, 404 U.S. 336, 348 (1971) (quoting Judge
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
See, e.g., United States v. Stein, 541 F.3d 130, 155-57 (2d
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.