Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
NACDL’s determination to rein in overcriminalization is steadfast and multifaceted.1 The Association seizes every opportunity to shine a light on the many facets of overcriminalization across the full spectrum of its advocacy. These efforts reached new heights during a span of five days in late May.
Attacking HIV Overcriminalization
On May 21, 2016, NACDL’s Board of Directors addressed a manifestation of overcriminalization that originated during an era of national hysteria: the widespread enactment of criminal statutes that allow prosecutions and enhanced penalties for allegations of nondisclosure, exposure and potential transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws that are misapplied to prosecute those who are HIV positive. These laws and prosecutions are manifestly unjust for myriad reasons. First, HIV prosecutions are status offenses that focus on knowledge of status as a key element of an HIV-related crime rather than on intent and capacity to expose and transmit. As such, these crimes are the quintessential example of the evisceration of mens rea that is so increasingly prevalent in state and federal criminal statutes.
A second flaw manifest in these laws is that there is a vast disconnect between the fear and the reality, the risk and the science. The fact is that many prosecutions relate to conduct that actually carries no, or virtually no, risk of transmission, such as spitting, biting, or throwing bodily fluids.2 Further, most of the laws originated before antiretroviral therapy (ART) was widely available. ART not only vastly expands the lifespan for those who are HIV positive, but it also dramatically decreases the risk of transmission by those who are receiving the therapy.3 Most significantly, when ART is combined with consistent use of condoms, the risk of transmission is reduced by 99.2 percent.4
Finally, these laws embody fundamentally flawed public policy. HIV prosecution based on knowledge of status has the perverse effect of creating a disincentive for those at risk from getting tested. This is especially troubling now that effective ART treatment is available. According to the President’s Advisory Council on HIV/AIDS, “Punishments imposed for nondisclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV. Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy, and is fueling the epidemic rather than reducing it.”5
Against this backdrop, at its spring meeting in Las Vegas, NACDL’s Board of Directors unanimously adopted a resolution opposing all laws that base criminal liability and/or penalty enhancements on HIV status rather than intent to harm another.6 The new policy also calls for the repeal of all such laws, and recognizing that in some cases repeal of those laws may result in abusive application of existing statutes, calls for broad reforms to incorporate strong principles of intent and proportionality of punishment. The policy will enable NACDL to offer its resources to partner with a broad array of organizations and individuals, such as the Positive Justice Project,7 that share a commitment to end HIV criminalization and once and for all end the stigmatization of those who are affected by the virus. Doing away with HIV criminalization is critical to efforts to end the epidemic.
Attacking the Full Scope of Overcriminalization
On May 26, 2016, with support from the Foundation for Criminal Justice (FCJ), NACDL partnered with the U.S. Chamber Institute for Legal Reform to sponsor a major symposium on overcriminalization: The Enforcement Maze: Overcriminalizing American Enterprise. The premise for the event was the recognition that America’s criminal justice system is out of control. The United States jails too many for too long. It arrests too many for too little. And it broadly criminalizes all manner of disfavored social, personal, and economic behavior. The vast proliferation of criminal statutes over the past few decades, coupled with the well-documented array of collateral consequences, has truly created an Orwellian web of potential criminal exposure and long-term detrimental impact.
Unlike many programs that focus narrowly on the traditional components of overcriminalization, such as the vast proliferation of criminal penalties in both statutes and regulations, and the lack of clear criminal intent requirements, The Enforcement Maze expanded the discussion. It examined pervasive systemic abuses, such as the abusive manner in which investigations are conducted, including the perversion of the grand jury process and rampant discovery abuse. It also explored how deliberate overcharging in criminal cases, amidst a regime of draconian penalties, undermines the right to a trial by jury, supplanting a fundamental constitutional right with the necessity to accept a plea bargain.
Additionally, the program considered the impact of the recently promulgated memorandum by Deputy Attorney General Sally Yates, which asserts that corporate entities will not be permitted to receive the benefit of cooperation if they do not identify individual wrongdoers within the corporation.8
The program featured a broad array of leading private and corporate attorneys, academics, policymakers, and political leaders.9 Two leading legislators, Rep. Bob Goodlatte (chairman of the House Judiciary Committee) and Sen. Orrin Hatch, delivered keynote addresses in which both renewed their pledge to seek bipartisan criminal justice reforms that will include legislation to tighten intent provisions in criminal statutes. David Ogden, the Obama administration’s first deputy attorney general, offered his perspectives on the threats of overcriminalization and the potential impacts of the Yates memorandum.
This symposium was only one aspect of this important collaborative effort to foster fundamental reform. Many of the presenters will submit papers that NACDL will publish and broadly disseminate. These works, along with a conference report, will be available at www.nacdll.org/enforcementmaze.
Whether it is partnering with groups whose primary focus is on the impact of overcriminalization on commerce, such as the Institute for Legal Reform, or those whose principle concern is social and personal justice, such as the Positive Justice Project, NACDL remains steadfast in its determination to address systemic flaws in the criminal justice system with allies from across the full spectrum of political and philosophical ideology
- Norman L. Reimer, Due Process Crisis on Campus: An Isolated Phenomenon or a Harbinger of More Overcriminalization? The Champion, November 2015 at 7; Norman L. Reimer, When It Comes to Overcriminalization, Prosecutorial Discretion Is for the Birds, The Champion, September/October 2012 at 9.
- U.S. Dep’t of Justice, Civil Rights Division, Best Practices Guide to HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors, available at https://www.aids.gov/federal-resources/national-hiv-aids-strategy/doj-hiv-criminal-law-best-practices-guide.pdf. See also Centers for Disease Control and Prevention, HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, available at http://www.cdc.gov/hiv/policies/law/risk.html.
- Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments, President’s Advisory Council on HIV/AIDS (PACHA) Resolution (February 7, 2013), available at https://www.aids.gov/federal-resources/pacha/meetings/2013/feb-2013-criminalization-resolution.pdf.
- NACDL Board of Directors Resolution Concerning HIV Criminalization (May 21, 2016), available at http://www.nacdl.org/resolutions/2016sm01.
- The Positive Justice Project, which is a project of the Center for HIV Law and Policy, is a national coalition of organizations and individuals working to end HIV criminalization in the United States.
- Memorandum from Deputy Attorney General Sally Quillian Yates (September 9, 2015), available at https://www.justice.gov/dag/file/769036/download.
- The website, www.nacdl.org/enforcementmaze, will contain program materials and participant bios.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
Norman L. Reimer
1660 L Street, NW, 12th Floor
Washington, DC 20036