Congress Considers Over-Criminalization and Over-Federalization of Criminal Law

As noted at White Collar Criminal Prof Blog and The Justice Fellowship, the U.S. House of Representatives Subcommittee on Crime, Terrorism and Homeland Security held a hearing last week on “Over-criminalization of Conduct and Over-federalization of Criminal Law.” Organizations which addressed the Subcommittee on issues of over-criminalization and over-federalization included the American Bar Association, the American Civil Liberties Union, the National Association of Criminal Defense Attorneys, the Heritage Foundation and the Federalist Society.

The hearing considered the lack of distinction between federal criminal and civil offenses, as well as over-federalization of criminal law where federal criminal laws have been enacted to cover offenses already subject to state criminal laws, usually providing for harsher penalties. The Subcommittee noted the existence of approximately 4,500 federal criminal laws, with approximately 50 new criminal laws enacted by Congress each year.

The hearing should be welcome news to most federal criminal defense practitioners. Reform in these areas is badly needed. In some cases, certain prosecutions of alleged federal crimes would be more equitably, and less expensively, handled through the imposition of civil fines and penalties. Furthermore, in many cases, State prosecutorial entities are as capable as Federal entities to prosecute offenders in areas where State and Federal criminal law overlaps. The Blog looks forward to the proposals for reform which result from the hearing.