chevron-down Created with Sketch Beta.
June 01, 2013

ABA describes over-criminalization problems in criminal justice system

The ABA is in the forefront of congressional efforts to evaluate federal criminal laws, with an ABA witness appearing on the first panel presenting testimony June 14 to the new House Judiciary Committee’s Task Force on Over-criminalization.

 William N. Shepherd, chair of the ABA Criminal Justice Section, told the task force that serious problems at every stage of the criminal justice process “undermine basic tenets of fairness and equality as well as the public’s expectation of safety.” The result, he said, is “an overburdened, expensive, and often ineffective criminal justice system.”

 Shepherd explained that both over-criminalization and over-federalization lessen the value of important existing legislation by flooding the landscape with duplicative and overlapping statues that make it impossible for the lay person to understand what is criminal and what is not. Punishment, the centerpiece of American criminal law, he said, “can lose its deterrent, educative, rehabilitative and even retributive qualities under the barrage of overly broad, superfluous statutes.”

 Shepherd noted that a report issued in 1998 by the ABA Task Force on the Federalization of Criminal Law concluded that there had been significant growth in recent decades in the types of behavior that federal lawmakers address through criminal law and that a sizeable portion of new federal criminal legislation dealt with localized matters previously left to the states. He explained that a direct consequence of this unwarranted federal intrusion is a greatly increased number of federal convictions inevitably leading to commensurate increases in the federal prison population. There is a growing consensus, he testified, that the projected growth of the federal Bureau of Prisons budget of $6.6 billion cannot be sustained and that reform of federal criminal law, particularly those governing sentencing and release from prison, must be reexamined.

 Since the ABA’s 1998 report, the pace of new federal criminal laws has continued unabated, Shepherd said. A current estimate is that there are more than 4,500 separate federal criminal statutes scattered throughout the federal code without any coherent organization. He also noted widespread recognition that decades of expansion of federal crime have resulted in the criminalization of behavior that often lacks criminal intent and would be better managed through civil fines or non-criminal sanctions.

“More broadly, the problem of over-criminalization adds to the human and societal costs of an overburdened criminal justice and corrections system,” Shepherd said. Aside from the financial burdens on the corrections system,  over-reliance on incarceration has been proven to have a broad negative impact on the future income, employment prospects and family involvement of the large population of persons impacted by imprisonment in the United States.

“Reducing over-criminalization saves taxpayer money and improves the lives of all citizens,” Shepherd concluded.

 All those testifying at the hearing agreed that Congress should take action to address the problem of over-criminalization. Former Deputy Attorney General George J. Terwilliger III focused his testimony on the proliferation of criminally enforceable federal regulations resulting from the increasing number of criminal statutes. He recommended that Congress consider “long-overdue reforms” to the Federal Corrupt Practices Act and that the task force consider drafting a set of principles to which all new or proposed criminal sanctions would be required to conform before being reported out of committee.

 Other witnesses included John G. Malcolm, senior legal fellow at the Heritage Foundation, and Steven D. Benjamin, president of the National Association of Criminal Defense Lawyers. 

 During the hearing, task force Chairman F. James Sensenbrenner (R-Wis.) said that he is working with the Congressional Research Service to launch a thorough review of the U.S. criminal code. The task force, established in May, is scheduled to make recommendations in six months for improving the criminal justice system. 

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.