On Jan. 6, 2015, the House of Representatives adopted a rule that requires the House Judiciary Committee to be afforded an opportunity to review any bill containing new criminalization.

The expected prosecutions as a result of the Dobbs decision are bearing down on a system already overwhelmed post-COVID. Because of the promise of arrests for those traveling interstate seeking services, defense attorneys may feel an impact even if they do not practice in an abortion-restrictive jurisdiction.

No matter what side of the abortion debate you find yourself, as defenders we must appreciate the fact that reversal of Roe would profoundly impact our capacity to defend clients from arbitrary or excessive government power in three significant ways.

DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.

The Election Integrity Act passed by Georgia contains numerous textbook examples of overcriminalization.

Few areas in the white collar world are in as much upheaval as law and practice under the federal honest services statute, but public corruption investigations continue at a quick pace. The authors provide practical suggestions about how to shape and present a defense – from a theory of the case and in limine motions to jury instructions and post-trial advocacy.

The Bridgegate Scandal, as Kelly v. United States grew to be called, spawned from political power, greed and revenge, and resulted in the deterioration of public trust. The actions of the defendants, however, were not criminal.

Jennifer Bouriat provides an overview of the mail and wire fraud statutes and the right to control theory, a brief history of the pertinent case law that has shaped the theory, and an overview of the circuit split on the validity of the theory. She offers key points to consider in defending a mail and wire fraud case.

In the Yates case and the Whitfield case, overcriminalization and the “trial penalty” attracted the attention of the U.S. Supreme Court.

In September 2015, NACDL sponsored a briefing for congressional staffers that addressed two questions: How should the federal government strike the right balance between the use of criminal law sanctions and civil law sanctions? Are prosecutors expanding the reach of criminal statutes to address conduct that was clearly not contemplated by Congress when enacted?

Since the turn of the century, the rule of lenity has enjoyed a mini-revival, at least when interpreting a law broadly would expose a defendant to a lengthy sentence disproportionate to the offense. The latest illustration of this trend is Yates v. United States. When punishment would be incommensurate with the offense, defense attorneys should not forget that an argument based on the rule of lenity can have considerable force.

Overcriminalization includes many troubling trends: overlapping criminal provisions, inadequate definition of what conduct is criminal, the erosion of intent requirements, and excessive penalties.

Dozens of states have criminal statutes specific to HIV, others use existing statutes to prosecute people who commit certain crimes when they are HIV positive. Many of these laws are the product of hysterical overreaction, lacking any nexus to the actual risk of transmission.

One misapplication of criminal law is the overly broad expansion of criminal statutes by prosecutors, such as the statute involved in the case of Yates v. United States.

The Congressional Task Force on Overcriminalization conducted 10 investigative hearings in 2013-2014. Topics included reducing the number of federal crimes and eliminating mandatory collateral consequences of conviction.