Four years ago, no one would have believed that the administration of former President Trump would have been defined, in part, by major criminal justice reforms. The bipartisan First Step Act rightfully made plenty of headlines and received praise from across the political spectrum. But one executive order in the final days did not garner much attention, though it will be just as impactful for criminal justice reform of the administrative state.
Groups as varied as the National Association of Criminal Defense Lawyers and The Heritage Foundation agree that at the heart of overcriminalization is the sheer number of criminal laws on the books, estimated to be in 5,000 federal statutes. This happens when politicians want to posture about “getting tough” and pass laws that impose criminal penalties without thoughtfully considering whether criminal punishment is necessary or the unintended impacts of such criminalization.
Lawmakers who talk a big game about fighting crime are only the beginning of the problem. Many of these tough-on-crime laws delegate to administrative agencies the power to write more rules and regulations that are punishable with criminal penalties to enforce the legislation’s goals, which effectively creates even more criminal laws. The result? Around 300,000 different ways someone could face jail time for breaking federal law (whether intentionally or inadvertently).
With hundreds of thousands of ways to break the law, it is impossible for anyone to know all the ways that they might be in violation. As a matter of fundamental fairness and due process, people should not be put in jail for accidentally breaking a law. Indeed, a basic tenet of the criminal law is that, with rare exception, a person is not criminally liable unless he intends to cause harm or, at a bare minimum, knows that his actions likely will cause injury. Unfortunately, the federal government increasingly has prosecuted individuals even if they took reasonable precaution to comply with the law.
Take the case of Joe Robertson, who served 18 months in prison and was fined $130,000 for building small fire protection ponds and a narrow ditch on his land in the Montana woods to protect his property. Robertson had no way to know that even though his land is 40 miles away from the nearest navigable waterway, the Environmental Protection Agency (EPA) considered a foot-wide, foot-deep nameless channel on his property to be a “commercial waterway” under the Clean Water Act. The EPA prosecuted Robertson for working on his property without a permit.
Robertson, who was 78 when he was prosecuted, died before he could clear his name. With the help of pro bono counsel that few others can secure, the Supreme Court and the Ninth Circuit vacated his conviction after his death, but this posthumous vindication does not give Robertson and his family back the years they spent fighting his case and the year and a half of his life that he spent in prison.
To ensure that individuals such as Robertson are not unjustly prosecuted for inadvertent violations of law, the Trump administration issued an important executive order, titled “Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform.” This order may limit overcriminalization in two important respects.
First, it establishes the principle that federal criminal law “should be clearly written so that all Americans can understand what is prohibited and act accordingly.” Therefore, agencies must include with every new regulation a clear statement that describes whether a violation of the regulation could result in criminal penalties. Notice is the first step of due process, and it long has been ignored.
Second, the executive order states that prosecution based on violations of federal regulations “is most appropriate for those persons who know what is prohibited or required by the regulation and choose not to comply, thereby causing or risking substantial public harm.”
Accordingly, each agency is directed to establish clear and public guidelines in consultation with the Department of Justice to refer a matter for prosecution. And an agency must offer a justification for why it is necessary to hold people accountable even if they did not intend to violate the agency regulation at issue.
These steps do not go nearly far enough in tackling overcriminalization, but they are an important step towards transparency and accountability.
The Biden administration is seemingly eager to throw out anything associated with the Trump administration. But it should not indulge the same instinct here. Rather, it should embrace this executive order and urge the Department of Justice and all other agencies to implement and comply with it fully.
Joe Luppino-Esposito is the deputy legal policy director, and Daniel Ortner is an attorney, at Pacific Legal Foundation (PLF), a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. PLF represented Joe Robertson before the Supreme Court.