March 22, 2021 Practice Points

Executive Order Seeks to Combat Overcriminalization

In his final days in office, then President Trump issued an executive order seeking to address overcriminalization and the prosecution of individuals who unknowingly violated federal law.

By Sheena Foye and James R. Wyrsch

On January 18, 2021, then President Trump issued an executive order on “Protecting Americans from Overcriminalization through Regulatory Reform.” This order aims to address the issue of overcriminalization by ensuring that when executive agencies promulgate criminal regulations, they are specific about what conduct is prohibited and the required mens rea. The order also goes on to state that strict-liability offenses are “generally disfavored,” and that administrative and civil remedies should be pursued rather than criminal prosecution “where appropriate.” The order also directs agencies that intend to use strict liability to submit a brief justification, with legal authority, for its use. Finally, the order directs prosecutors who prosecute regulatory crimes to focus on those people who “know what is prohibited or required by the regulation and choose not to comply” rather than on those people who unknowingly and with no ill intent violate the law. 

Federal criminal law can be broad and difficult to understand. This can at times result in individuals facing criminal penalties for conduct that they did not know was criminal. This order is an effort to help clarify what is and is not a crime. The National Association of Criminal Defense Lawyers (NACDL) states:

With over 4,450 crimes scattered throughout the federal criminal code, and untold numbers of federal regulatory criminal provisions, our nation's addiction to criminalization backlogs our judiciary, overflows our prisons, and forces innocent individuals to plead guilty not because they actually are, but because exercising their constitutional right to a trial is prohibitively expensive and too much of a risk. This inefficient and ineffective system is, of course, a tremendous taxpayer burden.

These authors encourage practitioners to visit the NACDL’s “The Face of Overcriminalization” page to see real-life examples like the case of John Yates, who faced up to 20 years for a fishing violation, or Lawrence Lewis, who was convicted for unknowingly violating a provision of the Clean Water Act as examples of prosecutions in the future that this order is seeking to prevent. Finally, if you have a client facing an indictment based on strict liability, you should ask yourself this question: Does your client have a due process or other challenge if a federal agency failed to comply with this executive order?

Sheena Foye and James R. Wyrsch are with Wyrsch Hobbs Mirakian P.C., in Kansas City, Missouri.


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