It is estimated that there are at least 10,000, and possibly as many as 300,000, federal regulations that can be enforced criminally. And, contained within this monstrous code are duplicative and overlapping statutes that encourage prosecutors to overcharge. For the average citizen, the promise of fair notice has become hollow—there is simply no way to know all that is and is not criminal. Efforts to reform the code must tackle these problems head-on and focus on injecting clarity, uniformity, and specificity into the code.
Count the Crimes to Cut Act
H.R. 5597, Count the Crimes to Cut Act of 2021
NACDL has endorsed the Count the Crimes to Cut Act (H.R. 5597), sponsored by Representatives Chip Roy (R-TX), Hakeem Jeffries (D-NY), and David Trone (D-MD). The bill would require the Attorney General to produce a full report of all federal criminal statutes and federal regulations with criminal penalties, which have been estimated to number about 4,500 and 300,000, respectively. The report would have to specify the elements, potential penalties, and mens rea requirements, as well as the number of prosecutions brought in the last 15 years, for each offense. This bill is aligned with NACDL’s ongoing work on overcriminalization and federal criminal code reform.
The Criminal Code Modernization and Simplification Act
H.R. 1860, the "Criminal Code Modernization and Simplification Act of 2013"
Over 1,000 pages long, this Act attempts to improve the federal criminal code by making a variety of global changes to Title 18 of the United States Code. The amendments in this Act are significant and many are highly technical in nature. The Act would replace mens rea requirements, increase penalties, remove fines as a possible punishment, and apply "attempt" to all offenses. The Act would also narrow the general conspiracy statute and add several new offenses to the federal criminal code.
The National Criminal Justice Commission Act
S. 714, the “National Criminal Justice Commission Act of 2010”
The National Criminal Justice Commission Act would establish an 11-member commission, known as the “National Criminal Justice Commission,” to undertake a comprehensive review of the United States’ criminal justice system.
Why These Bills Matter
Criminal Code Modernization and Simplification Act
Although this Act seeks to improve the federal criminal code, it actually makes several troubling changes to all the criminal offenses in Title 18 of the U.S. Code. For example, the Act would weaken mens rea requirements through the replacement of "willfully" with "knowingly," increase penalties in the conspiracy statute, apply "attempt" in a blanket manner to all offenses, and delete fines as a possible punishment in nearly all offenses. The Act creates several new criminal offenses, but does narrow the general conspiracy statute (18 U.S.C. § 371).
National Criminal Justice Commission Act
Under this Act, the newly created Commission has a mandate to issue findings on current drug policy, incarceration rates, prison administration, the impact of gang activity, as well as the prevalence of physical and mental illness in the jailed population. Based on its findings, the Commission must then make reform recommendations to improve public safety, cost-effectiveness, overall prison administration, and fairness in the implementation of the nation’s criminal justice system. The Commission must complete this process and issue a report to Congress and the President within 18 months of its formation.
NACDL’s Position on Federal Criminal Code Reform Legislation
NACDL Opposes the Criminal Code Modernization and Simplification Act
Although NACDL supports reform of the federal criminal code, this Act contains a variety of provisions that would be a step in the wrong direction. One of the most dangerous aspects of overcriminalization is the inclusion of inadequate mens rea requirements; this bill weakens all offenses containing the term "willfully" through a global replacement. That this replacement is made in a blanket manner, and without a specific analysis of each offense, is not only arbitrary, it is deeply troubling. Such an amendment will undoubtedly result in some unintended consequences and fails to provide any additional clarity to the code.
The Act would make conspiracy to commit any federal offense subject to the same penalty as the completed offense. This proposal is at odds with the sound policy of most states to impose reduced liability for uncompleted offenses and the provision in the U.S. Sentencing Guidelines distinguishing between conspiracy and completed offenses. No evidence has been offered to justify this spectacular, wholesale increase in punishment that will undoubtedly produce many unintended consequences. The Act's application of attempt to all federal criminal offenses and revision that would make attempt to commit any federal offense subject to the same penalties as the completed offense are similarly unjustified and dangerous changes to the federal criminal code.
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Not only does the Act seek to increase penalties for many offenses through the changes to conspiracy and attempt discussed above, but it would also delete fines as a possible punishment in nearly all offenses. Such a change is not only deeply troubling in the context of the Sentencing Reform Act and in light of the pressing need to reduce the prison population, but it has the potential to cause great confusion when read in conjunction with other provisions of the code governing sentencing. Finally, despite the Act's purpose to shorten and clarify the federal criminal code, it would actually create several new criminal offenses.
For all these reasons, NACDL opposes this Act. While the purpose of the Act is well-intended and NACDL agrees with the need to reform the federal criminal code, this Act does not achieve that purpose and actually creates additional problems.
NACDL Supports the National Criminal Justice Commission Act
NACDL supports the National Criminal Justice Commission Act and urges its swift passage. A top-to-bottom examination of our criminal justice system is urgently needed. The Act would establish a blue-ribbon commission to conduct a comprehensive review of the federal, state, and local criminal justice systems. Such a review should shed light on the waste caused by excessive criminalization and incarceration. In the current economic climate, the wastefulness of incarceration is especially unjustifiable.
Status of Federal Criminal Code Reform Bills
Criminal Code Modernization and Simplification Act
Rep. James Sensenbrenner introduced H.R. 1860 into the 113th Congress on May 7, 2013. It was referred to the House Committee on the Judiciary the same day and, on June 20th, 2014 it was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. The bill has no additional cosponsors and has not moved out of the subcommittee since referral. Rep. Sensenbrenner had previously introduced the Act in the 112th Congress as H.R. 1823 and, on Dec. 13, 2011, the House Judiciary Subcommittee on Crime held a hearing on the Act. That bill also had no cosponsors and did not move out of subcommittee.
National Criminal Justice Commission Act
S. 714 was introduced to the Senate on March 26, 2009 and later referred to the Senate Committee on the Judiciary. It did not move out of committee.
How to Get Involved
Please use NACDL’s Contact Congress function to call or e-mail your U.S. Representative or Senator to encourage them to re-introduce, co-sponsor, or generally support similar legislation in the 117th Congress. Find and contact your elected officials in Washington.
July 24, 2014, Written Testimony of NACDL Past President, Steven Benjamin, to the House Judiciary Committee Overcriminalization Task Force.
February 28, 2014, Written Testimony of NACDL Member, John D. Cline, to the House Judiciary Committee Overcriminalization Task Force Hearing on Criminal Code Reform.