Although the harm caused by overcriminalization is frequently amplified by the executive and judicial branches, it generally originates in the legislative process. It can take many forms, but most frequently occurs through:
- Ambiguous criminalization of conduct without meaningful definition or limitation;
- Enacting criminal statutes lacking meaningful mens rearequirements;
- Imposing vicarious liability with insufficient evidence of personal awareness or neglect;
- Expanding criminal law into economic activity that is traditionally and more efficiently regulated by civil laws and civil enforcement;
- Creating mandatory minimum sentences un-related to the severity, wrongfulness, or harm of the underlying crime;
- Federalizing crimes traditionally reserved for state jurisdiction; and
- Adopting duplicative and overlapping statutes.
Visit our "Face of Overcriminalization" page to learn the personal stories of these everyday people who have fallen prey to our broken system.
Visit "The Enforcement Maze" page for program details, videos, and commentary of the law and policy symposium about the overcriminalization of American enterprise organized by NACDL and the U.S. Chamber of Commerce's Institute for Legal Reform.
On September 16, 2015, NACDL Executive Director Norman Reimer introduced a panel titled “Striking the Right Balance: Criminal v. Civil Sanctions” on Capitol Hill. Planned by NACDL and co-sponsored by The Constitution Project, the event focused on educating Hill staffers about the important distinctions between civil and criminal enforcement. Prof. Lucian Dervan served as moderator. And the panelists were federal defender Adeel Bashir as well as NACDL members Marjorie Peerce and John Lauro.
On January 6, 2015, Congress took an important step to address this issue by adopting a change to the rules of the U.S. House of Representatives that will afford the House Judiciary Committee the opportunity to exercise its jurisdiction over any bill that proposes or modifies a new or existing criminal law or penalty. NACDL has long advocated for precisely this kind of reform in its efforts to combat overcriminalization and the overfederalization of crime. NACDL and its coalition partners submitted a joint letter endorsing the change in advance of the relevant votes by the leadership conference and the full House.
In May 2013 Congress established the Overcriminalization Task Force within the House Judiciary Committee. The Task Force held hearings on a variety of overcriminalization topics and convened its final hearings in July 2014. To learn more about NACDL's efforts to tackle this problem and foster meaningful reform, visit our "Advocacy and Scholarship" page.
Shana-Tara O'Toole, NACDL's former Director of White Collar Crime Policy, spoke with Ivan Dominguez, host of NACDL's Criminal Docket Podcast series, about the Overcriminalization Task Force. The podcast, entitled "Congress's Overcriminalization Task Force," discusses the work the task force has done so far and the critically important work that lies ahead. The podcast is available below and on NACDL's Criminal Docket page.
Watch the videos below to learn how overcriminalization twists our criminal justice system into an inefficient, ineffective, and expensive burden on our society:
NACDL has played a key role in developing an ideologically diverse coalition of organizations that has worked successfully to shine a spotlight on this problem—whether in Congress, the press or academia—and, importantly, to give overcriminalization victims a voice. Learn the personal stories of these everyday people.
The harm caused by overcriminalization is frequently amplified by the executive and judicial branches. However, as demonstrated by NACDL's ground-breaking joint report "Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law," it originates through systematic failures in the legislative process. And, just as the problem begins with Congress, so must any meaningful reform.
Listen to the experts below as they discuss the recommendations of the report and outline possible solutions to the overcriminalization problem:
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A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
NACDL is fully committed to stemming and reversing the tide of overcriminalization. Learn more about NACDL's work in this area.
Pictured: Tiffany M. Joslyn, former NACDL White Collar Crime Policy Counsel and Without Intent Co-Author, joined at the Without Intent release press conference on May 5, 2010, by (left to right) NACDL Executive Director Norman L. Reimer, Hon. Bobby Scott (D-VA), Hon. Louie Gohmert (R-TX), former Attorney General Edwin Meese III, and Brian W. Walsh, former Heritage Foundation Senior Legal Research Fellow and Without Intent Co-Author.
In This Section
Computer Fraud and Abuse Act (CFAA)
Congressional Task Force on Overcriminalization
Federal Criminal Code Reform
Foreign Corrupt Practices Act (FCPA)
Honest Services Fraud & Public Corruption
Overcriminalization Advocacy & Scholarship
The Face of Overcriminalization
Todd Farha: A Case Study in Overcriminalization and Unchecked Prosecutorial Discretion
News of Interest
- "How the Criminalization of Testosterone Attacks Gender Variant People,"
- "Why telling a cop you have Covid in New Jersey could get you 10 years in prison,"
- "Pennsylvania Homeless Man Spared Felony Charge for 43-Cent Misunderstanding,"