Overcriminalization is a dangerous trend that NACDL battles daily. With over 4,450 crimes scattered throughout the federal criminal code, and untold numbers of federal regulatory criminal provisions, our nation's addiction to criminalization backlogs our judiciary, overflows our prisons, and forces innocent individuals to plead guilty not because they actually are, but because exercising their constitutional right to a trial is prohibitively expensive and too much of a risk. This inefficient and ineffective system is, of course, a tremendous taxpayer burden.
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.
Pending State Legislation || Priority Federal Legislation
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:
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Cross-Examination Trial Pack
NACDL’s new Cross-Examination Trial Pack includes three of our best-selling Cross-Examination resources: “Damage Control: Situational Cross-Examination Techniques Trial Guide”, "Ultimate Cross 2.0: Audio Recordings & Written Materials" and "Sample Cross-Examination Questions."
This masterful collection of cross-examination resources provide countless tips, techniques and strategies for a variety of criminal case-specific scenarios. Learn to cross-examine a variety of trial witnesses!
Death Investigation: Forensic Pathology in the Courtroom and Cause & Manner of Death (2022)
This unique program provides criminal defense lawyers with an accurate and clear overview of forensic pathology and the countless factors to consider in a death investigation and will methodically explain what happens during an autopsy to determine cause and manner of death.
You'll uncover the different types of medicolegal death investigations, what to request from your MDI expert, quality benchmarks for accreditation and certification, guidelines and standards, common terminology and frequently asked questions.
The Psychology of Persuasion & Storytelling for Criminal Defense Lawyers
This Trial Resource Guide is a masterful collection of practical tips, techniques and strategies focused solely on using the arts and sciences of persuasion to improve your storytelling skills at trial.
You'll learn how to master the ability to communicate with juries, deliver powerful openings and closings, perform convincing cross-examinations, use effective courtroom choreography and non-verbal communication, identify and develop the optimal theme and theory for your case, and offer compelling arguments during mitigation and sentencing.
Zealous Advocacy in Sexual Assault & Child Victims Cases (2022)
Defending charges of sexual assault and child abuse can be daunting — but with the right tools, it doesn’t have to be.
Every year, NACDL identifies the hottest topics and most pressing issues when defending these cases, and brings-in nationally-renowned lawyers and experts to help you prepare for battle. This year’s 13th Annual Defending Sex Cases training program is our best yet; packed with topics and speakers you won’t want to miss!
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:
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
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- "Welcome to the Nicotine Prohibition Era,"
- "Criminalizing free speech? Group challenges Miami Beach law used to cuff people filming cops,"