NCPA - National Center for Policy Analysis

Criminalization through Regulation Is Not Just

June 27, 2013

In recent years, advocates from across the political spectrum have increasingly criticized overcriminalization -- the tendency of government to use criminal law to regulate behavior that is not traditionally criminal, say Vikrant P. Reddy and Marc A. Levin, analysts for the Texas Public Policy Foundation.

Overcriminalization has been prevalent when the environment is involved. Five possible fixes include:

  • First, policymakers should review whether certain offenses are properly characterized as "crimes" in the first place. If not, criminal penalties for these offenses should be removed.
  • Second, states should strengthen their mens rea protections. Civil and criminal law have always been distinguished by the requirement that a criminal must have a guilty state of mind, but an increasing number of regulatory offenses disregard the mens rea requirement because it is inconvenient for a speedy prosecution. Similarly, some statutes require mere criminal negligence rather than intentional, knowing, or reckless conduct for culpability. Negligence is a low standard that is more appropriate in civil cases.
  • Third, states should codify the rule of lenity to environmental offenses, and not simply trust the court will apply it. The rule of lenity is a canon of statutory interpretation instructing a court to resolve ambiguities about whether conduct is criminally prohibited in favor of the defendant. This approach to statutory interpretation is almost universally unquestioned in criminal prosecutions -- except (conveniently) when it comes to regulatory offenses.
  • Fourth, states should eliminate provisions that delegate to agencies the power to create criminal offenses through rulemaking. Many provisions in state and federal statutes authorize regulatory agencies to designate any violation of their rules as a criminal offense.
  • Finally, states should implement safe harbor provisions. A safe harbor provision is an element in a statute or regulation that affords protection from liability or penalty if certain conditions are met. Often these conditions require that no harm has occurred as a result of the violation and that the offender take prompt steps to come into compliance with the statute or regulation that has been violated.

Source: Vikrant P. Reddy and Marc A. Levin, "Five Solutions for Addressing Environmental Overcriminalization," American Legislative Exchange Council, May/June 2013.


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