Overcriminalization Advocacy & Scholarship

NACDL is fully committed to stemming and reversing the tide of overcriminalization. This page contains information and materials on the efforts of NACDL and its allies to tackle the problem of overcriminalization and foster meaningful reform, as well as, related scholarship and programming. Visit the Face of Overcriminalization webpage for personal stories of overcriminalization. 

Scholarship || Programming || The Face of Overcriminalization

Advocacy & Related Press

Fishy SOX: Overcriminalization’s New Harm Paradigm Todd Haugh, March 2015.

“Should You Be Jailed for Committing a Crime You Didn’t Know Was A Crime? New Ohio Law Tackles Issue,” The Daily Signal, January 13, 2015.

“The Overcriminalization of America,” Politico Magazine, January 7, 2015.

“House Judiciary Committee Gets Broader Jurisdiction After Rule Change,” LegalTimes, January 6, 2015.

“A Rare Bipartisan Consensus In Favor of Overcriminalization Reform,” National Review Online, January 4, 2015.

"When Ignorance Is an Excellent Excuse," by Evan Bernick, National Review, January 13, 2014.

"Opinion: Overcriminalizing Americans wastes money and ruins lives," by Cara Sullivan, Fox News, December 11, 2013.

Continue reading below

"MALCOLM/REIMER: Over-criminalization undermines respect for legal system," by John G. Malcolm and Norman L. Reimer, The Washington Times, December 11, 2013.

"Opinion: Laws Have Overcriminalized Business Behavior," by Ellen Podgor, The New York Times, November 10, 2013.

Interview:  NACDL Executive Director Norman Reimer on Overcriminalization 

Legislative Tool:  Criminal Law Checklist for Federal Legislators  

Overcriminalization Task Force: All materials related to the work and hearings of this House Judiciary Committee Task Force is available here. 

"Factsheet - Overcriminalization: An Explosion of Federal Criminal Law," The Heritage Foundation, April 27, 2011.

Congressional Hearing on "Reining in Overcriminalization: Assessing the Problems, Proposing Solutions," September 28, 2010 

Capitol Hill Release Event for "Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law," May 5, 2010 

Congressional Hearing on "Over-criminalization of Conduct and Over-Federalization of Criminal Law," July 22, 2009  

Scholarship

Shana-Tara O'Toole, The Rare Specter of Strict Liability in Federal Criminal Environmental Prosecutions  

Ronald A. Cass, Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law, The Federalist Society, December 2014.

Evan Bernick, Paul Larkin, and Jordan Richardson, Is Congress Addressing Our Overcriminalization Problem? Reviewing the Progress of the Overcriminalization Task Force, The Heritage Foundation, August 2014.

Stephen F. Smith, A Judicial Cure for the Disease of Overcriminalization, The Heritage Foundation, August 2014.

Paul Larkin, The Extent of America's Overcriminalization Problem, The Heritage Foundation, May 2014.

James Copland & Isaac Gorodetski, The Shadow Lengthens: The Continuing Threat of Regulation by Prosecution, Manhattan Institute for Policy Research, February 2014.

Evan Bernick, "The Best of Disinfectants": Using Publicity to Fight Overcriminalization, The Heritage Foundation, January 2014.

Julie Rose O'Sullivan, The Federal Criminal "Code": Return of Overfederalization, 37 Harv. J.L. & Pub. Pol'y 57 (2014)

Paul Larkin, Regulation, Prohibition, and Overcriminalization: The Proper and Improper Uses of the Criminal Law, 42 Hofstra L. Rev. 745 (2014)

Law Review Articles Produced from: "Overcriminalization 2.0: Developing Consensus Solutions" and "Overcriminalization Symposium - The Politics of Crime"

Paul Larkin, Reasonably Construing the Computer Fraud and Abuse Act to Avoid Overcriminalization, The Heritage Foundation, June 2013.

Paul Larkin, Fighting Back Against Overcriminalization: The Elements of a Mistake of Law Defense, The Heritage Foundation, June 2013.

Paul Larkin, The Need for a Mistake of Law Defense as a Response to Overcriminalization, The Heritage Foundation, April 2013.

Texas Public Policy Foundation (TPPF), Engulfed by Environmental Crimes: Overcriminalization on the Gulf Coast, December 2012.

Overcriminalization of Conduct, Overfederalization of Criminal Law, and the Exercise of Enforcement Discretion, Smart on Crime: Recommendations for the Administration and Congress (2011)

Kyle O'Dowd, Shana-Tara Regon and Michael Price, Notes from the Defense Bar: Fighting for Reform on Three Fronts During the Obama Administration, Federal Sentencing Reporter (December 2010)

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]

Brian W. Walsh and Tiffany M. Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, The Heritage Foundation and National Association of Criminal Defense Lawyers (2010)  

Programming

"A Conversation With Abbe David Lowell" - This unique one hour program with prominent defense attorney Abbe D. Lowell discusses lessons learned from his defense of John Edwards, and other prominent politicians, and explores the overcriminalization implications of such prosecutions.  Click here to watch! 

Podcast:  Timothy O'Toole & James Copland on Overcriminalization - Timothy O'Toole, criminal defense attorney with Miller Chevalier and NACDL Board Member, and James Copland, director of the Center for Legal Policy at the Manhattan Institute, discuss overcriminalization at federal and state levels.  Click here for the audio! 

Hill Staffer Training: Have You Committed a Felony Today? - Federal criminal laws present a labyrinth that is difficult for staffers to navigate in order to stay on the right side of the law.  On October 7, 2011, NACDL and the Heritage Foundation co-hosted a training on Capitol Hill to address this very issue.  This panel of experts explores the pitfalls facing Hill staffers in federal criminal law and shares insights on what staffers can do to avoid being prosecuted for how they do their job.  For anyone working on or around Capitol Hill, this must-see program will help you answer that critical question: Have you committed a felony today?  Click here for the video! 

Overcriminalization 2.0 Symposium - Developing Consensus Solutions - On October 21st, 2010, the Journal of Law, Economics & Policy at the George Mason University School of Law hosted its annual symposium on the problem of overcriminalization and development of reforms. This program was sponsored by NACDL, the Foundation for Criminal Justice, and the Law & Economics Center at George Mason University.  Symposium materials and law review scholarship, published in J.L. Econ. Pol'y Issue 7.4, are below: 

Avoiding a Rush to Judgment - Overcriminalization in the Subprime Meltdown - On October 27, 2008, the Heritage Foundation, NACDL and the Washington Legal Foundation presented a discussion of the subprime crisis, viewed through the lens of potential criminal liability, by a panel of distinguished criminal defense lawyers.  Most leading financial experts and economists agree that the causes of the financial meltdown are predominately economic, and not criminal in nature. Yet both The Economist and former Assistant Attorney General Rachel Brand have recently observed that political pressure in the wake of a crisis frequently translates into a perceived mandate on Congress to create new criminal laws – and on the Executive Branch to prosecute and convict someone.  Click here for the video and review the written materials from NACDL: "Mortgage Fraud: In Brief" and "Sufficiently Armed: The Federal Toolbox for Punishing Criminality in the Subprime Market." 

Overcriminalization Symposium - The Politics of Crime - On October 29, 2004, NACDL, the American University Law Review and The Heritage Foundation presented an all-day symposium on overcriminalization. Symposium materials and law review scholarship are below: