January 2010
The Challenge of Over-Criminalization
and the Need for Reform
Background paper for
remarks by
Dick Thornburgh
Former Attorney General of the United States
Counsel, K&L Gates LLP
To a panel discussion on
“The Over-Criminalization Of Business:
More Laws, Less Freedom?”
Sponsored by
The Texas Public Policy Foundation
University of Texas
Austin, Texas
It is a great pleasure to speak to you this afternoon about the perils
the mental states required for criminal convictions. Most efforts to
of over-criminalization in our society and the need to undertake
codify the law of common-law jurisdictions employ three or four
specific reforms in this area. I have served on both sides of the
requisite mental states—usually describing purpose, knowledge,
criminal aisle during my career—as a federal prosecutor for
reckless indifference to a consequence, and, in a few instances,
many years and more recently as a defense attorney involved in
negligent failure to appreciate a risk.
proceedings adverse to the United States Department of Justice. This
provides me, I believe, with a balanced view of the issues in today’s
Without a clear mens rea requirement, citizens are not able to
criminal justice system and can, I hope, provide some insights and
govern themselves in a way that assures them of following the law,
suggest some ideas to deal with the growing challenge of over-
and many actors may be held criminally responsible for actions that
criminalization. Because of the serious corporate scandals we have
do not require a wrongful intent. Such “strict” liability in a criminal
observed over the past several years, which have focused more
action does have a venerable history—almost three thousand years
public attention on criminal sanctions, it is an especially appropriate
ago, the Emperor of China decreed that it would be a criminal
time to assess the impact of our criminal laws on the business
offense, punishable by death, for a governor of a province to permit
community as we consider proposals for reform.
the occurrence, within the province, of an earthquake. Even our own
imperial Congress has not gone that far … yet!
While most of my experience has been in the federal system, I
know as a former state governor how inter-governmentally related
Our Congress, however, has not been entirely modest. A recent
these issues can be—state attorneys general today, for example,
Federalist Society report states that federal statutes provide for over
are increasingly focused on allegations of corporate wrongdoing.
100 separate terms to denote the required mental state with which
And the problem of over-criminalization is truly one of those issues
an offense may be committed, and the Heritage Foundation issued
upon which a wide variety of constituencies can agree—witness the
a report stating that 17 of the 91 federal criminal offenses enacted
broad support for reform from such varied groups as the Heritage
between 2000 and 2007 had no mens rea requirement at all.
Foundation, the Washington Legal Foundation, the National
Such trends cannot continue and suggested legislative reform in the
Association of Criminal Defense Lawyers, the American Bar
nature of a default mens rea requirement when a statute does not
Association, the Cato Institute, the Federalist Society and the ACLU.
require it is worthy of consideration.
These groups share a common goal: to have criminal statutes that
punish actual criminal acts, and do not seek to criminalize conduct
that is better dealt with by the seeking of civil and regulatory remedies.
II.
Many scholars and the Department of Justice have tried to count
I.
the total number of federal crimes, but only rough estimates have
emerged. The current “estimate” is a staggering 4,450 crimes on
The criminal sanction is a unique one in American law, and the
the books. If legal scholars and researchers and the Department of
stigma, public condemnation and potential deprivation of liberty that
Justice itself cannot accurately count the number of federal crimes,
go along with that sanction demand that it should be utilized only
how do we expect ordinary American citizens to be able to be
when specific mental states and behaviors are present.
aware of them? One criminal law expert stated that we can no
longer repeat with confidence the long-standing legal maxim that
By way of background, let me briefly remind you of some
“ignorance of the law is no excuse” because the average American
fundamentals of criminal law. Traditional criminal law encompasses
citizen cannot actually know how many criminal laws there
various acts, which may or may not cause results, and mental states,
actually are.
which indicate volition or awareness on the part of the actor. These
factors are commonly known as the requirements of mens rea and
Although I could probably spend my whole panel time citing to you
actus reus, or an “evil-meaning mind [and] an evil-doing hand.”
the often-mentioned, truly absurd examples of over-criminalization,
such as using the character of “Woodsy Owl” or the slogan “Give
With respect to what has now become known as “over-
a Hoot, Don’t Pollute” without authorization; or wearing a postal
criminalization,” objections are focused on those offenses that go
uniform in a theatrical production that discredits the postal service,
beyond these traditional, fundamental principles and are grounded
the dangers of over-criminalization for more serious offenses are real
more on what were historically civil or regulatory offenses without
and impact real people.
The Challenge of Over-Criminalization and the Need for Reform
2
Make no mistake, when individuals commit crimes they should be
Nevertheless, in 1909, the Supreme Court held in a railroad
held responsible and punished accordingly. The line has become
regulation case that a corporation could be held criminally liable for
blurred, however, on what conduct constitutes a crime, particularly
the acts of its agents under the civil tort law theory of what is known
in corporate criminal cases, and this line needs to be redrawn and
as “respondeat superior,” or, in non-legalese, “the superior must
reclarified. The unfortunate reality is that Congress has effectively
answer,” meaning that an employer is responsible for the actions of
delegated some of its important authority to regulate crime in this
employees performed within the course of their employment.
country to federal prosecutors, who are given an immense amount
of latitude and discretion to construe federal crimes, and not always
Since 1909, business entities have routinely been held criminally
with the clearest motives or intentions.
liable for the acts of their employees. In recent history, one of the
more significant cases is Arthur Andersen, a case of which you
A striking example of this is the “honest services” mail and wire
are no doubt aware, in which the defendant received effectively
fraud statute, 18 U.S.C. §1346, currently before the U.S.
a death sentence based on the acts of isolated employees over a
Supreme Court. That statute has been subject to scrutiny because
limited period of time. As this case illustrates, this is not a
of its expansion from traditional public corruption cases to private
partisan issue—Arthur Andersen was prosecuted under a
acts in business or industry that are deemed to be criminal
Republican administration.
almost exclusively at the whim of the individual prosecutor who is
investigating the case.
In an earlier speech at the Georgetown Law Center regarding
over-criminalization, I mentioned the Arthur Andersen case and
Indeed, in a dissenting opinion on an earlier denial of review by
referenced a political cartoon that was published after the Supreme
the Supreme Court in an honest services case, Justice Scalia said
Court reversed the company’s conviction in which a man in a
that the state of the law for honest services fraud was “chaos,” and
judicial robe was standing by the tombstone for Arthur Andersen
stated the practical reality of the statute as currently applied:
and said, “Oops. Sorry.” That apology didn’t put the tens of
thousands of partners and employees of that entity back to work.
[w]ithout some coherent limiting principle to define what “the
This simply cannot be repeated, and reform is needed to make sure
intangible right of honest services” is, whence it derives, and
there are no such future miscarriages of justice.
how it is violated, this expansive phrase invites abuse by
headline-grabbing prosecutors in pursuit of local officials, state
legislators, and corporate CEO’s who engage in any manner of
unappealing or ethically questionable conduct.
This over-breadth can lead to a near paranoid corporate culture
that is constantly looking over its shoulder for the “long arm of the
law” and wondering whether a good faith business decision will
be interpreted by an ambitious prosecutor as a crime. Perhaps
even more significant is the impact on corporate innovation—if an
idea or concept is novel or beyond prior models, a corporation
may stifle it if it is concerned about potential criminal penalties. This
stifling may render some corporations unable to compete in a global
marketplace just to ensure compliance with domestic laws—certainly
a “cutting off one’s nose to spite the corporate face.”
As I have noted, the issue of over-criminalization is especially
poignant in corporate crime. A corporation is an “artificial entity.”
The legal persona of a corporation is wholly dependent on the
laws that created it. Thus, a corporation is a stable being, separate
and distinct from the human beings that perform its functions. The
corporation is, in the eyes of the law, very much an entity.
III.
What can be done to curb these abuses? First, I have advocated
for many years that we adopt a true Federal Criminal Code. While
this may not be the first thing that comes to mind when analyzing
the issues of concern in the criminal justice system, it is an important
one that should be undertaken without delay. As I mentioned, there
are now some 4,450 or more separate statutes—a hodgepodge
without any coherent sense of organization. There is a template
in existence, the Model Penal Code, that can act as a sensible
start to an organized criminal code, and has formed the basis for
many efforts to establish state criminal codes in this country. What
is needed is a clear, integrated compendium of the totality of the
federal criminal law, combining general provisions, all serious forms
of penal offenses, and closely related administrative provisions
into an orderly structure, which would be, in short, a true Federal
Criminal Code.
A commission should be constituted, perhaps in connection
with Senator James Webb’s proposed National Criminal Justice
Commission Act, to review the federal criminal code, collect all
The Challenge of Over-Criminalization and the Need for Reform
3
similar criminal offenses in a single chapter of the United States
A law is needed to ensure uniformity in this critical area so that
Code, consolidate overlapping provisions, revise those with unclear
the guidelines and standards do not continue to change at the
or unstated mens rea requirements, and consider over-criminalization
rate of four times in ten years. Indeed, if an employee was truly a
issues. This is not a new idea—Congress has tried in the past to
“rogue” or acting in violation of corporate policies and procedures,
reform the federal criminal code, most notably through the efforts of
Congress can protect a well-intentioned and otherwise law-abiding
the “Brown Commission” in 1971. The legislative initiatives based
corporation by enacting a law that holds the individual rather
on that commission’s work failed despite widespread recognition of
than the corporation responsible for the criminal conduct without
their worth. It is incumbent on this Congress to seek to make sense
subjecting the corporation to the whims of any particular federal
out of our laws and make sure that average ordinary citizens can be
prosecutor.
familiar with what conduct actually constitutes a crime in this country.
One other aspect of over-criminalization should not escape our
Second, Congress needs to rein in the continuing proliferation
notice. A former colleague of mine at the Department of Justice
of criminal regulatory offenses. Regulatory agencies routinely
noted that there is something self-defeating about a society that
promulgate rules that impose criminal penalties that are not enacted
seeks to induce its members to abhor criminality, but simultaneously
by Congress. Indeed, criminalization of new regulatory provisions
brands as “criminal” not only those engaged in murder, rape and
has become seemingly mechanical. One estimate is that there are a
arson, but also those who sell mixtures of two kinds of turpentine, file
staggering 300,000 criminal regulatory offenses created by agencies.
forms in duplicate rather than triplicate or post company employment
notices on the wrong bulletin boards. The stigma of criminal
This tendency, together with the lack of any congressional
conviction is dissipated by such enactments and the law loses its
requirement that the legislation pass through the judiciary
capacity to reinforce moral precepts and to deter future misconduct.
committees—which are responsible for keeping an eye on the
Our criminal sanctions should be reserved for only the most serious
rationality of the traditional criminal offenses—has led to an
transgressions, and to do otherwise, in fact, causes disrespect for
evolution of a new and troublesome catalogue of criminal offenses.
the law.
Congress should not delegate such an important function to agencies.
With respect then to the problem of over-criminalization, let me
In this area, one solution that a renowned expert and former
summarize. Reform is needed. True crimes should be met with true
colleague from the Department of Justice, Ronald Gainer, has
punishment. While we must be “tough on crime,” we must also
advocated is to enact a general statute providing administrative
be intellectually honest. Those acts that are not criminal should be
procedures and sanctions for all regulatory breaches. It would be
countered with civil or administrative penalties to ensure that true
accompanied by a general provision removing all criminal penalties
criminality retains its importance and value in our legal system.
from regulatory violations, notwithstanding the language of the
These are changes that truly merit our attention if we are to remain a
regulatory statutes, except in two instances. The first exception
government of laws and not of men. And they merit attention by all
would encompass conduct involving significant harm to persons,
three branches of government—the legislative, the executive and the
property interests, and institutions designed to protect persons and
judicial—if productive change is to be forthcoming.
property interests—the traditional reach of criminal law. The second
exception would permit criminal prosecution, not for breach of the
Thank you.
remaining regulatory provisions, but for a pattern of intentional,
repeated breaches. This relatively simple reform could provide a
Dick Thornburgh
much sounder foundation for the American approach to regulatory
Counsel, K&L Gates LLP
crime than currently exists.
Washington, D.C.
202.778.9080
Third, Congress should also consider whether it is time to address
dick.thornburgh@klgates.com
whether “respondeat superior” should be the standard for holding
companies criminally responsible for acts of their employees. The
Department of Justice has issued a succession of memoranda from
Deputy Attorneys General during the past ten years setting forth
ground rules for when a corporation should be charged criminally
for the acts of its employees. These current guidelines, however,
may not be sufficient because they continue to vest an unacceptable
amount of discretion in federal prosecutors.
The Challenge of Over-Criminalization and the Need for Reform
4
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