This study of the 114^th Congress revisits a 2010 joint report by the Heritage Foundation and NACDL: Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. This new study found that Congress still regularly introduces bills with new criminal provisions that contain mens rea requirements that are not sufficiently protective. In fact, 42% of the bills analyzed had criminal intent requirements that were considered inadequate. [Released December 2021]

On May 5, 2010, NACDL and The Heritage Foundation released this groundbreaking, non-partisan report. At the release event, NACDL Executive Director Norman L. Reimer described the report as a "blueprint for principled reform" and urged "every elected official to end the madness that has produced over 4,450 federal criminal statutes, and countless tens of thousands more arising from the unchecked power of regulatory authorities." [Released May 2010]

Written Testimony of Lucian E. Dervan Assistant Professor of Law Southern Illinois University School of Law Before the House Committee on the Judiciary Over-Criminalization Task Force, United States House of Representatives “Regulatory Crime: Solutions”

Comments to the Bureau of Prisons Office of General Counsel regarding a proposed rule to apply good-time credits earned under First Step Act provisions to individuals in BOP custody with convictions under the D.C. Code.

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: If this Court were to hold that an offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), it would expand the reach of ACCA’s severe sentencing consequences to defendants whose predicate offenses bear little, if any, resemblance to the knowing and purposeful acts of violence Congress intended to target. Such a broad application of ACCA is wrong as a matter of law, and it would result in unjust and disproportionate sentences for defendants nationwide. ACCA’s force clause does not reach reckless offenses. The text of ACCA’s force clause, like the clause at issue in Leocal and unlike the clause in Voisine, does not cover reckless offenses. Excluding reckless offenses comports with ACCA’s purpose, in contrast to the gun-control provision in Voisine. ACCA should not apply to reckless offenses absent a clear indication from congress. The court has at least as much reason to apply lenity here as it did in Leocal. Application of the rule of lenity here would avoid the pernicious effects of a broad reading of ACCA.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellee.

Argument:  The Foreign Corrupt Practices Act (FCPA) applies to “an officer, director, employee, or agent” of a domestic concern or issuer.  The Government argues that “agent” means a common-law agent, but that reading of the statute is entirely at odds with both the FCPA’s plain text and the Act’s legislative history.  Congress intended for “agent” to mean a specific type of individual:  a foreign intermediary used to pay bribes.  If “agent” meant “common-law agent,” as the Government says, there would have been no need for Congress to specify “officer” or “employee”—both are “common-law agents.”  The legislative history also demonstrates that Congress had bribe-paying foreign “consultants” or “intermediaries” in mind when it crafted the FCPA to cover “agents.”  Reading the word “agent” broadly would raise serious concerns about extraterritorial application that Congress specifically sought to avoid.  Such a reading would also run afoul of well-established principles of lenity.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. 

Argument: The Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if otherwise authorized to access that information.  This reading goes beyond the CFAA’s text, fails to account for Congress’ intent in enacting it, and flouts the rule of lenity, which requires that ambiguous criminal statutes be construed in a defendant’s favor.  The decision below also interpreted the CFAA in a manner that raises due process concerns, both because it is an unconstitutionally vague reading of the statute and because it invites arbitrary and discriminatory enforcement, and thus the doctrine of constitutional avoidance requires that Petitioner’s reading of the statute prevail.  Further, an expansive reading of the CFAA would contribute to the trend of overcriminalization and give courts and prosecutors a backdoor method of updating criminal laws in response to changed technological—or potentially cultural, economic, or political—realities, something our constitutional structure reserves for Congress.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for a Writ of Certiorari). 

Argument: In this case, the Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if that person is otherwise authorized to access that information. This holding warrants review because it reinforces a conflict of authority regarding the meaning of “authorized access” under the CFAA and because the Eleventh Circuit was wrong on the merits. Review also is warranted because the question presented is important. Computers are ubiquitous in daily life. It is important that the Court clarify that ordinary deviances from terms-of-use requirements— whether imposed by internet websites or private company use guidelines, to name but a few—are not criminal. Review also is necessary because the Eleventh Circuit’s decision deviates from settled practices for construing federal criminal statutes. Because the Eleventh Circuit’s decision and those courts on its side of the open and acknowledged split of authority break from this approach at every level, this Court should grant review.

Professor Ellen S. Podgor's written statement to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security regarding addressing overcriminalization.

Amicus curiae brief in support of defendant-appellees’ petition for rehearing en banc. 

Argument: The panel decision erroneously failed to apply the rule of lenity in its ruling that the Clean Air Act’s ban on releasing hazardous air pollutants are defined more broadly in the criminal context than in the civil context; even if there were some merit in the panel’s ruling, the Act is ambiguous in that regard, which triggers the rule of lenity. The panel decision is also in error in holding that the government may cure an untimely indictment, originally dismissed for failure to state an overt act within the statute of limitations, by filing a superseding indictment within six months of dismissal.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner.

Argument: Under the Rule of Lenity, ambiguities in the prohibitions imposed by criminal statutes are construed in favor of the defendant to foster fairness and uniformity in the administration of the criminal justice system. The Rule of Lenity precludes application of the physical force element of the ACCA to the conduct – battery involving de minimis physical conduct – in this case.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Respondents

Argument: The government’s proposed use of constitutional avoidance would be unprecedented. This Court has never used constitutional avoidance to broaden a criminal statute. The government’s proposal would broaden the application of the Section 924(c) Residual Clause. This Court never has used constitutional avoidance to interpret identical language in related statutes to mean different things, as the government has proposed here. The government’s proposed use of constitutional avoidance would reduce the canon to an arbitrary tool with dangerous rule-of-law implications. The government’s proposed use of constitutional avoidance is irreconcilable with the due process right to fair notice. The government’s proposed use of constitutional avoidance fundamentally is at odds with the rule of lenity and the principles of fairness underlying the rule. The rule of lenity requires that ambiguous criminal statutes be construed in the defendant’s favor. Application of the rule of lenity is necessary to uphold the separation of powers and protect principles of fairness.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner and Urging Reversal.

Argument: The lower courts’ interpretation of "official act" violates principles that limit the scope of broadly worded federal criminal statutes. The statutes at issue are impermissibly vague if they cannot be construed to limit the scope of "official act."

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petition for a Writ of Certiorari.

Argument: The Court should grant the writ to reinforce key principles that restrain expansive interpretations of broadly worded federal criminal statutes. The Court should grant the writ to protect the Sixth Amendment right to an unbiased jury.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for a writ of certiorari.