“Overcriminalization” is a term increasingly used to describe the growing tendency in America—by federal lawmakers and bureaucrats in particular—to turn to the criminal law as the solution for every problem. As a result of overcriminalization, trivial conduct is now often punished as a crime. The drive to criminalize business conduct continues unabated, with federal officials even deploying the specter of jail time for a company’s negligent behavior, often as a tactical diversion away from the government’s own regulatory incompetence.
Of course, criminal law is supposed to be used only as a last resort to redress severe conduct that society deems deserving of the greatest punishment and legal sanction. And many criminal laws make it possible for the government to convict a person lacking any criminal intent whatsoever. What we desperately need is criminal laws that punish actual criminal acts and that don’t seek to criminalize conduct that is better dealt with through civil and regulatory processes.
WLF has long been at the forefront of those calling for a larger discussion on the recent trend to federalize and criminalize so many aspects of American life. Earlier this year, we released the second edition of our SPECIAL REPORT: FEDERAL EROSION OF BUSINESS CIVIL LIBERTIES, a 150-page, up-to-date critical analysis of the key legal, judicial, and regulatory developments over the years that chronicle the growing trend at the federal level to criminalize normal business activities. With a new Introduction by Former Attorney General Dick Thornburgh, WLF’s report discusses in depth the topics presented in WLF’s companion publication, TIMELINE: FEDERAL EROSION OF BUSINESS CIVIL LIBERTIES, a convenient, foldout, full-color chart that contains over 145 entries over the time period from 1900 to 2010. The report was revised and updated for the second edition with pro bono assistance from the global law firm White & Case LLP.