H.R. 4173, Dodd-Frank Wall Street Reform Act

Tiffany M. Joslyn, Criminal Provisions in the Dodd-Frank Wall Street Reform & Consumer Protection Act, Federalist Society New Federal Initiatives Project (December 2010) [HTML Version] [PDF Version]

*UPDATE - This bill is now law.  

The Dodd-Frank Wall Street Reform & Consumer Protection Act, H.R. 4173, is a textbook example embodying the central problems identified by NACDL and The Heritage Foundation in our joint, groundbreaking report released just last month entitled Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.” Upon our initial review, we have identified over two dozen new and troubling federal criminal offenses that will further explode the federal criminal code if enacted into law. This bill has not been referred to either chamber’s Judiciary Committee and, given the plan for passage, no full Judiciary Committee will ever review all the criminal offenses in the bill. Further, this bill allows un-elected officials to enact new, broad regulations for the financial sector, many of which will be directly tied to criminal enforcement provisions and thus will be criminally punishable. In addition, and perhaps most troubling, the overwhelming majority of the criminal offenses contained in this bill lack adequate mens rea, or criminal intent, requirements and, consequently, will fail to protect innocent or inadvertent actors from being criminally prosecuted or punished.  

Andrew Wise - Dodd Frank ActThe below document, titled "NACDL on H.R. 4173 - Recommendations," contains a set of recommendations for improving the quality of some of the criminal offenses included in this bill and making the overall bill more consistent with the fundamental principles of the American criminal justice system. Some provisions are beyond salvage and the recommendation is to strike them in full. In many instances, however, the particular provision can be improved by adding more protective mens rea requirements, limiting the scope of conduct covered by the offense, or both. Finally, where an offense allows for the unlimited creation of additional offenses through the authorization of regulatory criminalization, the recommendation is to limit the punishment for violations to a civil penalty.

Pictured: NACDL Member Andrew Wise exploring the overcriminalization problems with the Dodd-Frank Act on March 24, 2011, at a Capitol Hill education event. 

Resources on H.R. 4173

A Windfall for Overcriminalization, A Case for Reform (one pager on Dodd-Frank Wall Street Reform & Consumer Protection Act [HR 4173.EAS])

NACDL on H.R. 4173 - Recommendations (recommendations for reforming Dodd-Frank Wall Street Reform & Consumer Protection Act [HR 4173.ENR])

Criminal Provisions in H.R. 4173 (list of the criminal provisions in Dodd-Frank Wall Street Reform & Consumer Protection Act [HR 4173.ENR])

Dodd-Frank Wall Street Reform & Consumer Protection Act, HR 4173.ENR (Enrolled Bill, HR 4173.ENR, Final as Passed Both House and Senate)

HR 4173.EAS (Version of bill that served as the base-text for the Conference Committee)

NEW! Tiffany M. Joslyn, Criminal Provisions in the Dodd-Frank Wall Street Reform & Consumer Protection Act, Federalist Society New Federal Initiatives Project (December 2010) [HTML Version] [PDF Version]

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