Tag Archives: overcriminalization

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Criminal Intent? What Is That, and Why Do We Need to Prove It?

There is no principle of criminal law more important than intent.  Because we grant the government authority to take away our liberties if we do an act (or, in some instances, fail to act) defined by law as a crime, the government must prove beyond a reasonable doubt that we knew what we were doing and that what we were doing was unlawful.  Too often, federal and state prosecutors chafe against this need to establish that an individual or an organization intended to commit a crime.

It’s not surprising, then, that prosecutors, with assistance from legislatures, have been working to erode this basic principle.  WLF provides a wealth of examples of this in the Second Edition of our Special Report: The Federal Erosion of Business Civil Liberties.  Also, a 2010 National Association of Criminal Defense Lawyers and Heritage Foundation study, “Without Intent (illuminated by a Guest Commentary on The Legal Pulse) found a disturbing pattern of Congress reducing the level of intent that need be proven for a federal crime, in some instances down to simple negligence or strict liability. 

Our judicial branch is a criminal defendant’s last line of protection against the erosion of criminal intent.  Case in point, just yesterday, a federal judge threw out an indictment against a former drug company in-house lawyer who allegedly violated federal law by facilitating the “marketing” of a drug for an off-label use. Continue reading →

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The Enduring Problem of Overcriminalization

“Overcriminalization” is a term increasingly used to describe the growing tendency in America—by federal lawmakers and bureaucrats in particular—to turn to the criminal law as the solution for every problem.  As a result of overcriminalization, trivial conduct is now often punished as a crime.  The drive to criminalize business conduct continues unabated, with federal officials even deploying the specter of jail time for a company’s negligent behavior, often as a tactical diversion away from the government’s own regulatory incompetence.

Of course, criminal law is supposed to be used only as a last resort to redress severe conduct that society deems deserving of the greatest punishment and legal sanction.  And many criminal laws make it possible for the government to convict a person lacking any criminal intent whatsoever.  What we desperately need is criminal laws that punish actual criminal acts and that don’t seek to criminalize conduct that is better dealt with through civil and regulatory processes. Continue reading →