The Dichotomy Between Overcriminalization and Underregulation
70 Am. U. L. Rev. 1061 (2021).
* Gary R. Trombley Family White Collar Research Professor and Professor of Law, Stetson University College of Law. The author thanks the participants in the Southeast Association of Law Schools (SEALS) discussion group titled, Three Felonies a Day?: Is There a Problem of White Collar Overcriminalization, and the participants in the faculty speaker series at the American University Washington College of Law. The author also thanks Professors Hilary J. Allen, Jonas Anderson, Susan Franck, Lewis A. Grossman, Cynthia Jones, Eliezer Lederman, Binny Miller, Jeffrey Lubbers, Erin Okuno, Jenny Roberts, and Louis Virelli, as well as Stetson University College of Law and Cheryl L. Segal.
The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?
Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations—as well as their enforcement procedures, the prosecution of crimes, or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: (1) those advocating for increased criminalization and regulation or (2) those claiming overcriminalization and overregulation.
This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.
Overcriminalization1Professor Erik Luna states that the term “overcriminalization” may have been coined by Sanford Kadish when he described “the phenomenon of ‘criminal statutes which seem deliberately to overcriminalize, in the sense of encompassing conduct not the target of legislative concern.’” Erik Luna, Prosecutorial Decriminalization, 102 J. Crim. L. & Criminology 785, 785 (2012) (citing Sanford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 Harv. L. Rev. 904, 909 (1962)). has been identified in legal literature as a growing problem plaguing the United States criminal justice system.2The scholarly literature related to overcriminalization is widespread. See, e.g., Todd Haugh, Overcriminalization’s New Harm Paradigm, 68 Vand. L. Rev. 1191, 1191 (2015) (arguing that overcriminalization increases criminal conduct); Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703, 713, 716 (2005) (discussing the breadth and definition of overcriminalization); Stephen F. Smith, Overcoming Overcriminalization, 102 J. Crim. L. & Criminology 537, 541 (2012) (looking at ways to address overcriminalization concerns); Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 Am. U. L. Rev. 747, 749 (2005) (looking at whether there is an overcriminalization problem); John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193, 194, 196 (1991) (noting how criminal cases are being brought in instances that would in the past have been considered torts); Sanford H. Kadish, The Crisis of Overcriminalization, 7 Am. Crim. L.Q. 17, 17 (1968) (discussing the overuse of “criminal law to enforce morals, to provide social services, and to avoid legal restraints on law enforcement” as an example of improper overcriminalization). Entire symposia have focused on problems concerning overcriminalization. See, e.g., Symposium on Overcriminalization, 102 J. Crim. L. & Criminology 525 (2012); Symposium, Overcriminalization: The Politics of Crime, 54 Am. U. L. Rev. 541 (2005); Symposium, Overcriminalization 2.0: Developing Consensus Solutions, 7 J.L. Econ. & Pol’y 565 (2010). The discussions regarding overcriminalization go beyond the borders of the United States. See, e.g., Dmitriy Kamensky, American Peanuts v. Ukrainian Cigarettes: Dangers of White-Collar Overcriminalization and Undercriminalization, 35 Miss. C. L. Rev. 148, 148 (2016) (comparing overcriminalization in the United States to undercriminalization in the Ukraine). As a recognized problem across the political spectrum,3See Overcriminalization, Nat’l Ass’n of Crim. Def. Laws., https://www.nacdl.org/Landing/Overcriminalization [https://perma.cc/PQD5-LH2A] (noting that overcriminalization is a legislative issue); see also Alex Berger, Congress Takes Much Needed Step Forward on Over-Criminalization, Am. C.L. Union. (May 15, 2013, 4:59 PM), https://www.aclu.org/blog/smart-justice/mass-incarceration/congress-takes-much-needed-step-forward-over-criminalization [https://perma.cc/FG86-27C4] (explaining that overcriminalization has led to judges and prosecutors spending time on low-level cases instead of more serious crimes); Overcriminalization, Heritage Found., https://www.heritage.org/crime-and-justice/heritage-explains/overcriminalization [https://perma.cc/62AA-8EJE] [hereinafter Overcriminalization, Heritage Found.] (suggesting the need to get rid of unnecessary criminal laws); Overcriminalization, CATO Inst. (July 18, 2013), https://www.cato.org/multimedia/cato-video/overcriminalization [https://perma.cc/3SKC-TQCP] (noting the issue of federal overcriminalization for crimes that should be handled at the state level). overcriminalization has been defined as “the overuse and abuse of criminal law to address every societal problem and punish every mistake.”4Overcriminalization, Heritage Found., supra note 3. Scholars have blamed overcriminalization as one of the causes of the United States’ position as the global leader in mass incarceration.5Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html. The United States incarcerates individuals at a significantly higher rate than most countries. Id.; see also Ending Mass Incarceration, Vera Inst. of Just., https://www.vera.org/ending-mass-incarceration [https://perma.cc/7Y3Z-TYLB]. But see Alexandra Natapoff, Underenforcement, 75 Fordham L. Rev. 1715, 1719 (2006) (noting how “racially skewed enforcement practices” have led to underenforcement in some communities). From accused individuals housed in local jails to prisoners incarcerated in state and federal prisons, mass incarceration presents a civil rights issue that is in dire need of correction.6See Sawyer & Wagner, supra note 5 (noting that rampant overcriminalization of non-violent crimes does not explain why people are incarcerated or how to prevent it); see also Alexandra Natapoff, Atwater and the Misdemeanor Carceral States, 133 Harv. L. Rev. F. 147, 152 (2020) (discussing “misdemeanor arrest[s]” and their role in the carceral state, along with “its racial consequences”). Although the coronavirus (COVID-19) has caused temporary relief in the prosecution and incarceration of some individuals,7See Eli Hager, How Bill Barr’s COVID-19 Prisoner Release Plan Could Favor White People, Marshall Project (Mar. 28, 2020), https://www.themarshallproject.org/2020/03/28/how-bill-barr-s-covid-19-prisoner-release-plan-could-favor-white-people [https://perma.cc/X62C-SDPX]. there is a pronounced disparity in that relief,8See id. In some instances, individuals were initially told they would be allowed to move to home confinement and then it was denied to them. See Clare Hymes, Amid COVID-19 Threat, Inmates and Families Confused by Federal Guidance on Home Confinement Release, CBS News (Apr. 24, 2020, 4:01 PM), https://www.cbsnews.com/news/amid-covid-19-threat-inmates-and-families-confused-by-federal-guidance-on-home-confinement-release [https://perma.cc/K6AU-C44Y]. and it is uncertain if this unfortunate pandemic will have a lasting effect on criminal justice in the United States.9See RJ Vogt, How Coronavirus May Change Criminal Justice, LAW360 (Mar. 22, 2020, 8:02 PM), https://www.law360.com/articles/1255514/how-coronavirus-may-change-criminal-justice (discussing the reduction of arrests and release of individuals as a result of the Coronavirus); see also Nathan James & Michael A. Foster, Cong. Res. Serv., R46297, Federal Prisoners and COVID-19: Background and Authorities to Grant Release 2–13 (2020) (providing background and process for release of prisoners from custody).
In addition to driving mass incarceration, overcriminalization has also been faulted for allowing increased prosecutorial charging discretion. The increasing number of federal criminal statutes, especially in the last forty years,10Overcriminalization, Heritage Found., supra note 3. provides increased choices to prosecutors when proceeding against individuals. Overfederalization,11See Julie Rose O’Sullivan, The Federal Criminal “Code”: Return of Overfederalization, 37 Harv. J.L. & Pub. Pol’y 57, 57 (2014) (noting the problem of overfederalization in the criminal justice system). an outgrowth of overcriminalization, allows prosecutors to stretch criminal statutes,12See generally Ellen S. Podgor, “What Kind of a Mad Prosecutor” Brought Us This White Collar Case?, 41 Vt. L. Rev. 523 & n.2 (2017) (discussing a variety of cases brought in the federal system that demonstrate prosecutorial stretching of a statute). use “shortcut offenses,”13See generally Ellen S. Podgor, White Collar Shortcuts, 2018 U. Ill. L. Rev. 925 (2018) (examining the government’s use of “shortcut” crimes in white collar prosecutions). stack multiple charges for the same crime,14See Michael L. Seigel & Christopher Slobogin, Prosecuting Martha: Federal Prosecutorial Power and the Need for a Law of Counts, 109 Penn St. L. Rev. 1107, 1118 (2005) (explaining the problems when prosecutors charge the same conduct using multiple criminal offenses). and proceed against individuals who may be unaware of the criminality of their conduct.15See Brian W. Walsh & Tiffany M. Joslyn, Heritage Found. & Nat’l Ass’n Crim. Def. Laws, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law., 16 (2010). Discretion can result in disparities, especially to poor and minority members of society.16See generally Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. Cal. L. Rev. 643 (1997) (discussing the disparities caused by overfederalization).
Thus, in looking at overcriminalization, one needs to look at two separate tiers of this issue: (1) the growing number of federal statutes that allow for increased prosecutions; and (2) the increased discretion provided to prosecutors in enforcement practices that results in heightened prosecution and incarceration. The growth of federal statutes is not limited to crimes in Title 18, the volume containing the federal criminal code,1718 U.S.C. §§ 1-2250 (2018). as there also are regulatory statutes that have criminal provisions. These regulatory criminal offenses are apparent in areas such as environmental and health law, where the agency regulation will include a criminal provision for extenuated circumstances of misconduct or recidivist activity.18See infra Section I.A.2.c. But it is important to note that the growth and number of statutes, whether they be found in the federal criminal code or attached to regulatory statutes, present a distinct consideration from the prosecutor’s enforcement role and discretionary powers. That said, there is a symbiotic relationship between overcriminalization and the prosecutor’s discretionary role in enforcing the law, as the number, breadth, and opaque language of the statute can increase the prosecutorial charging power.
While overcriminalization and its subsidiary—overfederalization—are focused on criminal prosecutions and the increased number of statutes and resulting prosecutorial discretion, another aspect of our enforcement mechanisms is seen in the agency regulatory system that can result in holding individuals and companies administratively accountable.19Many administrative regulations also carry criminal penalties. These are considered criminal laws for purposes of this Article and distinguished from regulations that are within the sole province of the administrative agency and carry only civil as opposed to penal ramifications. In contrast to overcriminalization, with its increase in new statutes, in the regulatory sphere we currently see a scaling back of administrative regulations.20See infra Section II.A.1. This is equally as problematic as mass incarceration has been to society, since government underregulation can lead to societal problems, especially in areas of food, drugs, environment, health, and welfare. Underregulation can be blamed for fostering an environment that allowed for the savings and loan debacle21See infra notes 280–82 and accompanying text. and later the mortgage fraud fiasco.22See infra notes 287–88 and accompanying text. Failing to provide sufficient administrative oversight is seen in examples such as the U.S. Securities and Exchange Commission (SEC) initially not halting Bernard Madoff’s Ponzi scheme,23U.S. Sec. & Exch. Comm’n, Investigation of Failure of the SEC to Uncover Bernard Madoff’s Ponzi Scheme 456 (2009), https://www.sec.gov/news/studies/2009/oig-509.pdf [https://perma.cc/XT3E-RU3A]. as well as regulatory oversight failures that may be tied to major oil spills.24In investigating the Deepwater Horizon spill, it was stated that “[t]his catastrophic failure appears to have resulted from multiple violations of laws of public resource development, and its proper regulatory oversight.” Deepwater Horizon Study Grp., Final Report of the Investigation of the Macondo Well Blowout 5 (2011) http://ccrm.berkeley.edu/pdfs_papers/bea_pdfs/dhsgfinalreport-march2011-tag.pdf [https://perma.cc/5GPR-M2XP] (citing Robert Bea, Failures of the Deepwater Horizon Semi-Submersible Drilling Unit (2010)).
Looking at the government regulatory system, here again there are two separate categories to consider: (1) the decreasing number of regulations and (2) the under-enforcement of remaining regulations.25The regulations being considered here are strictly civil ones as criminal provisions would be included in the above overcriminalization discussion. These two tiers in the regulatory sphere present separate considerations in that the first examines the substantive regulatory regime, while the second focuses on procedural concerns in looking at agency enforcement mechanisms.
In examining the regulatory structure, the focus here is on the agency or administrative complement to the criminal justice system and not the literature discussing the propriety of “administrative crimes”26See Brenner M. Fissell, When Agencies Make Criminal Law, 10 U.C. Irvine L. Rev. 855, 855–57 (2020) (discussing the illegitimacy of “administrative crimes” as an improper delegation of legislative authority). or replacing criminal court actions with regulation.27Malcolm M. Feeley, Criminal Justice as Regulation, 23 New Crim. L. Rev. 113, 113 (2020) (discussing securing compliance with the law through regulatory theories such as creation of problem-solving courts). The distinction between criminal statutes that initially are investigated by agencies and then turned over to the Department of Justice (DOJ) versus those that have their inception in the DOJ is unimportant to this Article’s discussion. The line here is not the different forms of criminal statutes or their location within the federal code, but rather the criminal statutes themselves, whether they be administratively based or not, as forming one side of the discussion, while the civil agency structure that provides agency enforcement in a pre-criminal or civil posture is the other side. Thus, this is not a conversation about the propriety of the nondelegation doctrine or the appropriateness of allowing agencies to create criminal provisions. It is also removed from the scholarly literature pertaining to how the use of lower level agency crimes can be a move to foster a rehabilitative approach to criminal law.28See generally John Braithwaite, Restorative Justice and Responsive Regulation 29 (2002) (using a regulatory approach to criminal justice). This is also not a discussion of whether agencies should be given discretion in their interpretations of ambiguous statutes.29The court and scholarly literature on the priority and continuance of Auer, Skidmore, and Chevron deference are plentiful but are only tangential to the line between criminal and agency matters. See generally 33 Charles Alan Wright, Charles H. Koch & Richard Murphy, Federal Practice and Procedure § 8421 (West, 2d ed. 2018) (discussing the cases of Auer v. Robbins, 519 U.S. 452 (1997), Skidmore v. Swift & Co., 323 U.S. 134 (1944), and Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) and differences between the cases that provide the legal framework for agency discretion upon judicial review). Nor is the issue here the “[m]iddleground” between criminal and civil law that has been claimed by some to blur the distinction.30John C. Coffee, Jr., Paradigms Lost: The Blurring of the Criminal and Civil Law Models—and What Can Be Done About It, 101 Yale L.J. 1875, 1875, 1878 (1992) (discussing how civil remedies have punishment functions); see also Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L.J. 1795, 1802 (1992) (calling for limiting the criminal law to encompass the rising punitive civil sanctions); Aaron Xavier Fellmeth, Civil and Criminal Sanctions in the Constitution and Courts, 94 Geo. L.J. 1, 2–3 (2005) (discussing the divide between criminal and civil law). This Article also does not explore the benefits of using civil money penalties as a deterrent to misconduct. See Admin. Conf. of the U.S., Recommendation 72-6: Civil Money Penalties as a Sanction (1972). These are all important topics that are discussed in the regulatory-criminal world, but they are not what is being considered here.
Rather, this Article focuses on the relationship between overcriminalization and underregulation. It examines what happens when an overcriminalized system operates in an underregulated environment. In concurrently examining the criminal and regulatory structure, it is important to note that criminal activity in many instances will not have a correlation to regulation. Although possible, it would be rare to see, outside perhaps the administration by a police agency, that common law crimes such as rape, robbery, arson, or murder are directly tied to agency failures.31Arguably one could claim a correlation to the state juvenile and mental health agencies since they often have an indirect role in curtailing future criminal activity. One can also find instances of agencies that could have provided more forceful regulation, for example, in the education world that might have led to a reduction in rapes and homicides. But for the most part, common law crimes do not have a direct link to an administrative function—which is the correlation being examined in this Article. On the other hand, federal environmental, financial, food and drug, and other white-collar crimes32See Lucian E. Dervan & Ellen S. Podgor, “White-Collar Crime”: Still Hazy After All These Years, 50 Ga. L. Rev. 709, 722–23 (2016) (discussing what constitutes white collar crime). are apt to have agency regulations and oversight directly associated with the conduct or industry. Criminal matters that operate with federal parallel proceedings, like those investigated by both the DOJ’s Criminal Division and administrative agencies such as the SEC or the Internal Revenue Service (IRS), are likely to see both criminalization and agency regulation as dual components in the government process.33A key concern here involves the sharing of information between the civil agency and the criminal matter. Standards have developed to prohibit the sharing of agency information for the sole purpose of investigating a matter that has been the subject of a grand jury indictment. See United States v. Scrushy, 366 F. Supp. 2d 1134, 1137 (N.D. Ala. 2005) (finding it improper to transfer a deposition from a civil matter to criminal in order to obtain venue on a perjury criminal case). On the other hand, courts have noted the sharing of information and placed a lax standard on the government in needing to disclose this sharing when an attorney asks whether information from an agency will be provided to the DOJ’s Criminal Division. See United States v. Stringer, 535 F.3d 929, 942 (9th Cir. 2008) (finding that the SEC’s failure to respond to defense counsel about a parallel criminal investigation was not improper). See generally Anthony O’Rourke, Parallel Enforcement and Agency Interdependence, 77 Md. L. Rev. 985 (2018) (discussing how parallel civil and criminal enforcement works in the white-collar practice). One may also find the overlap of criminal and civil sanctions in areas of forfeiture or license revocations. See Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. Pa. L. Rev. 101, 103 & n.1 (1995) (noting the marked increase in the imposition of overlapping civil and criminal sanctions for the same misconduct).
In the federal sphere where the criminal and regulatory processes thrive, there is incongruity between overcriminalization and underregulation, and they are seldom examined together, as most seeking decriminalization are also seeking deregulation, and those seeking increased criminalization are likewise seeking increased regulation. Thus, there is a desire by some groups to eliminate government oversight, whether it be by laws or regulation, or whether it be in advocating a laissez faire policy.34See John Malcolm, Criminal Law and the Administrative State: The Problem with Criminal Regulations, Heritage Found. (Aug. 6, 2014), https://www.heritage.org/crime-and-justice/report/criminal-law-and-the-administrative-state-the-problem-criminal-regulations [https://perma.cc/H2DB-5D2S]; Paul J. Larkin, Jr., Regulation, Prohibition, and Overcriminalization: The Proper and Improper Uses of the Criminal Law, 42 Hofstra L. Rev. 745, 746 (2014). And on the opposite side, one finds claims that the government needs to create more laws to stop criminality and increase the regulatory state to enhance security among the citizenry.35See, e.g., Sunny Kim, Elizabeth Warren Proposes Criminal Penalties for Spreading Voting Disinformation Online, CNBC (Jan. 29, 2020, 2:57 PM), https://www.cnbc.com/2020/01/29/warren-proposes-criminal-penalties-for-spreading-disinformation-online.html [https://perma.cc/D6S7-ARBL] (stating Senator Warren’s call for both criminal and civil penalties for spreading voting disinformation online); Emily Stewart, Elizabeth Warren Wants CEOs to Go to Jail when Their Companies Behave Badly, Vox (Apr. 3, 2019, 5:30 PM), https://www.vox.com/policy-and-politics/2019/4/3/18294308/elizabeth-warren-op-ed-wells-fargo-equifax. This creates a polarized approach to criminal justice, from the substantive, procedural, and regulatory perspectives.
These two positions of either decreasing or increasing government involvement are simplistic and present a stark approach that fails to fully reflect the uniqueness of criminalization and agency regulation and the purposes behind these different government systems. It fails to subdivide the analysis of overcriminalization and underregulation beyond its rudimentary social construct.
This Article advocates considering the deficiencies of each system and provide a paradigm that offers a progressive model that can curtail criminal prosecution while also correcting wrongdoing through a forceful administrative agency approach. In that regard, this Article suggests a moderated approach that will reduce our carceral environment yet also reduce criminal conduct. The avenue to accomplish this is through a heterodox methodology that uses political economy theory in moving beyond a narrow law and economics approach.36See infra Part III.
Part I of this Article considers overcriminalization, including the increased number of statutes and the problems that are an outgrowth of increased federalization of criminal conduct.37See infra Section I.A. It then examines the enforcement side of this issue by looking at prosecutorial discretion and how this discretion has assisted in moving the criminal justice process to a carceral system.38See infra Section I.B. Also noted here is the underenforcement aspect of this problem that causes disparities among disadvantaged populations.39See infra notes 183–86 and accompanying text.
Part II looks at the other side of the coin in examining the past administration’s agenda to decrease regulations. It considers the accompanying enforcement mechanisms and the effect of deregulation on oversight and accountability.40See infra Section II.A. Past problems accruing from a lax regulatory system also are discussed.41See infra Section II.B.
Part III of this piece promotes a less polarized approach to curbing criminality by focusing on key principles embodied in political economy theory that will decrease improper conduct more efficiently and effectively. The all-or-nothing conflated approach, arguing for decreases in overcriminalization and regulation or alternatively increasing criminalization and regulation, fails to recognize the line between the criminal and regulatory structure and how they work, and should work, in tandem.42See infra Part III.
A market-driven analysis of regulation, devoid of transaction costs, fails to capture inherent disparities in society, or for that matter offer a utilitarian model that values dignity and equality. Societal reform needs to move beyond deregulation as a mere cost-benefit and accept political economy theory in developing an architecture that considers how regulation and criminal prosecution are connected. When coupled together, they can provide a robust structure that reduces overcriminalization while assuring a reduction in criminal activity.
I. Overcriminalization and Prosecutorial Discretion
A. Federal Statutes
Professor Francis A. Allen called criminal law “the heavy artillery of society.”43Francis A. Allen, The Morality of Means: Three Problems in Criminal Sanctions, 42 U. Pitt. L. Rev. 737, 738–39 (1981) (discussing the effectiveness of criminal sanctions). Yet despite its powerful and unique role in curtailing improper conduct, its growth in the United States has proceeded relatively unchecked.44James A. Strazzella, Task Force on the Federalization of Crim. L., The Federalization of Criminal Law 2 (1998). A 1998 American Bar Association task force chaired by Edwin Meese, III and William W. Taylor, III noted that “of all federal crimes enacted since 1865, over forty percent [were] created since 1970.” Id. It has been reported that there are currently over 4,400 federal criminal statutes and some have claimed that there are as many as 300,000 federal regulations with accompanying criminal provisions.45Jim E. Lavine, Faces of Overcriminalization, 34 Champion 5 (2010), reprinted in Jim E. Lavine, From the President: Faces of Overcriminalization, NACDL, https://www.nacdl.org/Article/November2010-FromthePresidentFacesofOvercri; see also NACDLvideo, Morning Keynote Address featuring Hon. Bob Goodlatte, YouTube (June 8, 2016), https://www.youtube.com/watch?v=Qyw9u7YR8kE&feature=youtu.be (stating that “during the Task Force’s review, [the bipartisan Congressional witness panel] asked the Congressional Research Service to count the number of crimes in the federal code. They did so diligently and reported that there are just shy of 5,000 separate federal statutes that carry criminal penalties”). Congressman Bob Goodlatte also noted that the panel asked the Congressional Research Service to report on the number of federal regulations that had criminal penalties, which was estimated at 300,000. Id. But see Fissell, supra note 26, at 863 (noting that “a precise count has not been ascertained”). This increase in the criminal legislative structure has created an overcriminalization problem that has been identified by movements such as “Right on Crime”46Right on Crime, http://rightoncrime.com [https://perma.cc/Y5KG-G4ZC]. and “Smart on Crime,”47See generally U.S. Dep’t of Just., Smart on Crime: Reforming the Criminal Justice System for the 21st Century (2013), https://www.justice.gov/sites/default/files/ag/legacy/2013/08/12/smart-on-crime.pdf [https://perma.cc/4R9L-Q3PE]. calling for re-examination of how new legislation is passed, so as not to overburden the criminal justice system.48See id. (highlighting the need to increase the system’s efficiency and reduce overburdened prisons). Up until recently, the DOJ’s “Smart on Crime” initiative also focused on how to be more effective in its prosecution strategy.49The Attorney General’s “Smart on Crime” initiative was a DOJ initiative of then-Attorney General Eric Holder as a “comprehensive review of the criminal justice system in order to identify reforms that would ensure federal laws are enforced more fairly and—in an era of reduced budgets—more efficiently.” Id. The Trump Administration’s DOJ has taken a different posture on charging, with a May 10, 2017 Memorandum for All Federal Prosecutors, in which then-Attorney General Jeff Sessions instructed prosecutors to “charge and pursue the most serious, readily provable offense.” Memorandum from the Att’y Gen. to all Fed. Prosecutors (May 10, 2017), https://www.justice.gov/opa/press-release/file/965896/download [https://perma.cc/LJ3B-AF2J]. His memorandum notes that this new policy “utilizes the tools Congress has given [to the DOJ].” Id.
Overcriminalization issues are not limited merely to increased federalization, but they have also included arguments about the vagueness and breadth of some federal criminal statutes. This allows for prosecutorial stretching of existing criminal statutes,50See Podgor, supra note 12, at 523 & n.2. something that occurs in many white-collar cases. For example, one finds not only the growth of new fraud, false statements, and obstruction statutes, but also many examples of prosecutors stretching these statutes beyond their initial design.51See id. at 526–29 (giving examples of prosecutorial stretching in mail fraud, gambling licenses, and wire fraud). This provides prosecutors an increased ability to charge individuals with criminal conduct in instances that might have previously been the basis for civil actions. Thus, overcriminalization is not limited to the number of statutes but also includes the sheer breadth of the language used in the creation of some federal offenses. One studied observation is the increased number of federal statutes that omit specific mens rea terms, allowing for prosecutions without the government proving that the accused acted with criminal intent.52See Walsh & Joslyn, supra note 15, at 16. In cases of strict liability offenses that might carry fines or small penalties, this approach is clearly warranted. But one finds today statutes written with severe criminal imprisonment ramifications being allowed when the perpetrator may not have intended the consequences of the act or may have been unaware that the acts would result in criminal charges, often with significant terms of imprisonment.53See Benjamin Levin, Mens Rea Reform and Its Discontents, 109 J. Crim. L. & Criminology 491, 495, 510 (2019) (looking at mens rea reform as a component of criminal justice reform).
Calls to reform federal criminal statutes are not new.54See Roger A. Fairfax, Jr., From “Overcriminalization” to “Smart on Crime”: American Criminal Justice Reform—Legacy and Prospects, 7 J.L. Econ. & Pol’y 597, 597 (2011) (discussing the “long and rich history of criminal justice reform efforts in the United States”). For example, in the 1970s, the Brown Commission, an outgrowth of President Johnson’s 1966 National Commission on Reform of Federal Criminal Laws,55Id. at 606. unsuccessfully attempted to revise the federal criminal code.56Id. at 607. The Commission’s 1970 Study Draft of a New Federal Criminal Code provided a detailed analysis for redoing federal criminal law as a comprehensive and organized body of law.57See id. There were repeated attempts to pass this legislation, but all failed.58Id.
More recently, a Congressional Task Force on Overcriminalization, comprised of equal members of each political party, was created by the House Judiciary Committee on May 7, 2013, to “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.”59Ivan J. Dominguez, Ep.36–Congress’s Overcriminalization Task Force, Nat’l Ass’n of Crim. Def. Laws. (Dec. 12, 2013), https://nacdl.org/Media/Episode-Thirty-Six-Congress%E2%80%99s-Overcriminalizatio [https://perma.cc/P5F5-UVRS]. The Overcriminalization Task Force held ten hearings to examine the problem of overcriminalization,60The Enforcement Maze: Overcriminalizing American Enterprise, Nat’l Ass’n of Crim. Def. Laws (Aug. 7, 2018), https://www.nacdl.org/Document/EnforcementMazeOvercriminalizingAmericanEnterprise (The Hon. Bob Goodlatte delivering remarks as the keynote speaker). which resulted in several bills being proposed to address the growing overcriminalization concerns.61Id. From legislation calling for adoption of a default mens rea62See Criminal Code Improvement Act of 2015, H.R. 4002, 114th Cong., 2d Sess., § 11 (2015); see also Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law Before the H. Comm. on the Judiciary, 113th Cong. 8-10 (2013) (testimony of John S. Baker, Jr., Georgetown Law professor). to legislation to remove criminal penalties for statutes such as the “Smokey Bear” emblem,63See Clean up the Code Act of 2019, H.R. 498, 116th Cong. § 2 (2019) (calling for the repeal of “Smokey Bear” as well as other provisions such as “Woodsy Owl,” it passed the House of Representatives on January 22–23, 2019). The prohibition of the “Smokey Bear” Character or Name Statute, prohibiting the use of the character “Smokey Bear” or facsimiles carries fine and imprisonment of “not more than six months.” 18 U.S.C. § 711. few were successfully adopted.
One area where there may be an executive push to limit criminalization is with the Foreign Corrupt Practices Act64See Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1494 (1977) (codified at 15 U.S.C. §§ 78dd-1, 78dd-2, 78ff). (FCPA). The FCPA is an outgrowth of the Watergate scandal,65Although Professor Mike Koehler notes that Congress had been investigating overseas bribery “apart from the Watergate scandal.” Mike Koehler, The Façade of FCPA Enforcement, 41 Geo. J. Int’l. L. 907, 911 (2010) (discussing the history of the FCPA). when it was discovered that many companies were bribing foreign officials to secure benefits for their companies.66“SEC discovered that more than 400 U.S. companies had paid hundreds of millions of dollars in bribes to foreign government officials to secure business overseas.” Crim. Div. of the U.S. Dep’t of Just. & Enf’t Div. of the U.S. Sec. & Exch. Comm’n, A Resource Guide to the U.S. Foreign Corrupt Practices Act 3 (2012), https://www.sec.gov/spotlight/fcpa/fcpa-resource-guide.pdf [https://perma.cc/L3UD-NBWK] (citing S. Rep. No. 95-114, at 6 (1977); H.R. Rep. 95-640, at 4 (1977)). Passed in 1977 and later amended in 1988 and 1998, it serves as an anti-bribery initiative to curtail foreign bribery by public companies.67Id. at 3–4. In addition to anti-bribery provisions, it also provides accounting mandates for public companies to “make and keep books, records, and accounts” in certain instances.68Koehler, supra note 65, at 922. Although the FCPA carries criminal penalties, a significant segment of this statute is regulatory in nature.69See generally Foreign Corrupt Practices Act of 1977, 91 Stat. 1494. When initially passed, it was met with concern by the business community, which argued it would decrease the ability of U.S. businesses to be competitive in international markets.70Rachel Brewster, Enforcing the FCPA: International Resonance and Domestic Strategy, 103 Va. L. Rev. 1611, 1628–31 (2017) (noting the business backlash to the passage of the FCPA). Amendments were eventually adopted to ease its effect on the business community, including amendments such as allowing companies to have “reasonable and bona fide expenditures” and make “grease payments.”71See Ezekiel K. Rediker, The Foreign Corrupt Practices Act: Judicial Review, Jurisdiction, and the “Culture of Settlement,” 40 Seton Hall Legis. J. 53, 57–66 (2015) (summarizing the history of the FCPA). The eventual adoption of the Organisation for Economic Co-operation and Development (OECD) Anti-Bribery Convention eased some of the tension by offering a more level playing field for businesses operating abroad.72Brewster, supra note 70, at 1630–31. In 2012, Donald Trump, prior to becoming President, criticized the FCPA, calling it a “horrible law.”73Renae Merle, Trump Called Global Anti-Bribery Law ‘Horrible.’ His Administration Is Pursuing Fewer New Investigations, Wash. Post (Jan. 31, 2020, 2:27 PM), https://www.washingtonpost.com/business/2020/01/31/trump-fcpa. The Washington Post reported that in 2017 President Trump “ordered his then-Secretary of State Rex Tillerson to do away with it.”74Id. Although the number of FCPA cases has diminished during his presidency,75“The number of new investigations hit [twenty-six] in 2016, the last year of the Obama administration, then fell to [twenty] new investigations in 2017 and [fifteen] in 2018.” Id. the Act remains in existence.
In addition to being the subject of many congressional hearings, there have also been many symposia and law review articles that have wrestled with issues related to overcriminalization.76See generally Ellen S. Podgor, Overcriminalization: New Approaches to a Growing Problem, 102 J. Crim. L. & Criminology 529 (2012); Ellen S. Podgor, Foreward: Overcriminalization 2.0: Developing Consensus Solutions, 7 J.L. Econ. & Pol’y 565 (2011); Ellen S. Podgor, Foreword: Overcriminalization: The Politics of Crime, 54 Am. U. L. Rev. 541 (2005). Many of these scholarly works address the need to move from an approach of “tough on crime” to a more economically feasible approach of being “smart on crime.”77See Roger A. Fairfax, Jr., The “Smart on Crime” Prosecutor, 25 Geo. J. Legal Ethics 905, 910–12 (2012) (discussing the shift from “tough on crime” to “smart on crime”). Professor Susan R. Klein and Ingrid B. Grobey, however, have argued that the growth of federal statutes has had “little effect, negative or positive, in the real world of federal criminal justice enforcement.” See Susan R. Klein & Ingrid B. Grobey, Debunking Claims of Over-Federalization of Criminal Law, 62 Emory L.J. 1, 5 (2012) (arguing that the growth of federal statutes has not had a revenue impact). The “politics of crime” has been a continued theme in many of these symposia.78See, e.g., Symposium, Overcriminalization: The Politics of Crime, supra note 2.
2. Examples of the exponential growth of federal statutes
Three examples of the growth of federal criminal statutes can be seen in the creation of new fraud statutes, the development of obstruction of justice statutes, and the addition of criminal penalties to existing administrative regulations. Mail fraud and obstruction of justice each started with a single statute and later became a part of a constellation of a larger number of statutes that were the progeny of the initial mail fraud or obstruction statutes.79See Ellen S. Podgor, Obstruction of Justice: Redesigning the Shortcut, 46 BYU L. Rev. (forthcoming 2021) (exploring the initial obstruction of justice statute); Jed S. Rakoff, The Federal Mail Fraud Statute (Part 1), 18 Duq. L. Rev. 771, 771–73 (1980) (reviewing the origins of the mail fraud statute). Mail fraud and obstruction of justice are not unique examples to the growth of federal statutes as we see the multiplication of federal offenses in many areas such as environmental crimes.80See Larkin, supra note 34, at 751–52 (noting that “environmental laws intentionally leave regulators ample room to maneuver in case new evidence amplifies the known potential adverse effect of hazardous substances (e.g., carcinogens) or brings to light new harms”). Some of the new additions are outside the criminal code and target recidivist or willful activity in the regulatory arena.
It should be noted that this Article does not advocate for a halt in the passage of new statutes that might specifically address wrongful conduct or in some cases, like computer crimes, new activities that might have been unknown in the past. Sometimes specific statutes can offer a more focused approach and a better model for deterrence than generic statutes. But it is important to examine this growth to ascertain whether statutes were passed to reflect a political “crime-control” model or were sincerely needed because they were not encompassed in the original legislation.
a. Mail fraud and its progeny
Mail fraud was part of an 1872 recodification of the Postal Act.81See Act of June 8, 1872, ch. 335, § 301, 17 Stat. 283, 323 (codified as amended at 18 U.S.C. § 1341). There was no legislative history accompanying this statute. See Rakoff, supra note 79, at 779–80 (explaining the history and development of the mail fraud statute). As one section (§ 301) of the 327-section Postal Act, its focus was not on “scheme[s] to defraud” but rather the use of the mails and the need to protect the “post-office establishment of the United States.”82See Ellen S. Podgor, Criminal Fraud, 48 Am. U. L. Rev. 729, 751–54 (1999) (presenting a historical view of the mail fraud statute). Some of the early cases following its passage affirmed that this statute was aimed at fraudulent schemes via the mails, as opposed to fraudulent schemes that merely used the post office.83See Rakoff, supra note 79, at 790–93 (discussing cases such as United States v. Clark, 121 F. 190 (M.D. Pa. 1903), which made the use of the mails an essential component of the scheme).
Over the years mail fraud became an expansive statute that provided prosecutors with a tool to use for a wide array of criminal activity.84See Peter J. Henning, Maybe It Should Just Be Called Federal Fraud: The Changing Nature of the Mail Fraud Statute, 36 B.C. L. Rev. 435, 438 (1995) (outlining the expansive nature of the mail fraud statute). Judge Jed S. Rakoff noted that for prosecutors, mail fraud “is our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart—and our true love.”85Rakoff, supra note 79, at 771. Judge Ralph K. Winter, in referring to mail and wire fraud, stated that “[w]ith regard to the statutory weapons available to prosecutors, they rank by analogy with hydrogen bombs on stealth aircraft.”86Ralph K. Winter, Paying Lawyers, Empowering Prosecutors, and Protecting Managers: Raising the Cost of Capital in America, 42 Duke L.J. 945, 954 (1993) (discussing the breadth of the mail fraud statute). Over time, mail fraud lost its emphasis on the post office and instead became a statute that was concerned with fraudulent activity that merely had a mailing as one “step in a plot.”87Badders v. United States, 240 U.S. 391, 394 (1916); see also Carpenter v. United States, 484 U.S. 19, 28 (1987) (noting that routine mailings could be within the purview of the mail fraud statute). Chief Justice Burger called mail fraud a “stopgap device to deal on a temporary basis with the new phenomenon, until particularized legislation can be developed and passed to deal directly with the evil.”88United States v. Maze, 414 U.S. 395, 405–06 (1974) (Burger, C.J., dissenting). The statute has been modified by Congress several times, including an amendment to make it more accessible to prosecutors by expanding it beyond mails to include items that were “sent or delivered by any private or commercial interstate carrier,”89Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 250006, 108 Stat. 1796, 2087 (1994) (codified at 18 U.S.C. § 1341). thus including FedEx and UPS.
In more recent years, new fraud statutes have been created with many of them based upon the mail fraud statute. For example, Congress passed the wire fraud statute in 1952,9018 U.S.C. § 1343. bank fraud statute in 1984,91Id. § 1344. health care fraud statute in 1996,92Id. § 1347. and the securities and commodities fraud statute in 2002.93Id. § 1348. Each replicates the mail fraud statute in requiring a “scheme or artifice to defraud,” although each focuses on a different type of fraudulent conduct.94Id. § 1341; see, e.g., id. § 1343. The conduct of individual defendants often can fit the generic mail fraud statute as well as one of the newer more specialized statutes.
One statute that has remnants of the mail fraud statute but also has very distinct qualities is found in the 1984 computer fraud statute.95Id. § 1030. Unlike many of the statutes that emanate from the mail fraud statute, the computer fraud statute is not limited to “schemes to defraud.”96Id. Rather, the statute covers conduct such as espionage, extortion, and trafficking in passwords.97Id. Where the mail fraud statute has broad open-ended terminology, the computer fraud statute provides a list of specific conduct encompassed in the statutory provision. But even here, the Supreme Court has found it necessary to set the contours of the terms used in the legislation.98On April 20, 2020, the Court granted certiorari in Van Buren v. United States to answer the question of “[w]hether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.” Van Buren v. United States, No. 19-783, (Apr. 20, 2020), https://www.supremecourt.gov/qp/19-00783qp.pdf.
The passage of the Racketeer Influenced and Corrupt Organization Act99Pub. L. No. 91-452, § 901(a), 84 Stat. 941, (1970) (codified at 18 U.S.C. § 1961 et. seq.). (RICO) in 1970 also expanded the statutory base of mail fraud and other fraud offenses as some of these offenses are listed as predicate acts that allow the charging of RICO.10018 U.S.C. § 1961(1). Merely having two predicate acts does not suffice for a pattern of racketeering. See H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 236 (1989). It is required that there also be continuity and relationship between these acts. See id. at 250. In 1986 Congress passed the federal money laundering crime statutes,101Money Laundering Control Act of 1986, Pub. L. No. 99-570, § 1352(a), 100 Stat. 3207–18 (1986) (codified at 18 U.S.C. § 1956). and one finds money laundering charges accompanying cases of mail and wire fraud.102Prosecutors also may tack on money laundering charges in white collar criminal cases when the fraud involved the use of money. See generally Teresa E. Adams, Note, Tacking on Money Laundering Charges to White Collar Crimes: What Did Congress Intend, and What Are the Courts Doing?, 17 Ga. St. U. L. Rev. 531 (2000) (examining how prosecutors will add money laundering charges in white collar cases). The ramifications of this increased number of statutes, oftentimes covered by existing criminal laws, are discussed in examining the power provided to prosecutors to choose their preferred statute in a criminal prosecution.103See infra Section I.B (analyzing prosecutorial discretion broadly from charging power to charging power limitations).
b. Obstruction of justice and its progeny
A second example of an older statute that in recent years has multiplied into new specific statutes focused on the same general form of conduct, is seen in examining obstruction of justice crimes. The initial obstruction of justice statute comes from an attempt by Congress to fill a gap in the contempt statute.104Podgor, supra note 79 (manuscript at 7–8). It was questionable whether contempt conduct that occurred outside the courtroom could be prosecuted under section 17 of the Judiciary Act of 1789. To rectify this omission, Congress in 1831 passed a statute that in section one allowed judges to hold parties liable for in-court misconduct, and in section two, “punish individuals both for in-court and out-of-court [conduct] that [was] against the ‘due administration of justice.’”105Id. In 1948, this initial obstruction of justice statute was split into two offenses, one for contempt conduct106Id. (manuscript at 8); 18 U.S.C. § 401. and the other for obstruction of justice.10718 U.S.C. § 1503.
Today there are many different obstruction of justice criminal statutes. These include specific obstruction conduct in government proceedings,108See Podgor, supra note 79 (manuscript at 10–12) (identifying a list of statutes pertaining to different government proceedings that might have had obstructive conduct). such as legislative bodies and agencies.109See 18 U.S.C. § 1505 (obstruction of proceedings before departments, agencies, and committees). One also finds statutes criminalizing investigations, such as obstruction of a criminal investigation of health care and offenses,110Id. § 1518. and destruction of corporate audit records.111Id. § 1520. Two key statutes passed in 1982, as part of the Victim and Witness Protection Act,112Pub. L. No. 97-291, § 4(a), 96 Stat. 1248, 1249–50 (1982) (codified at 18 U.S.C. §§ 1512–13). (§§ 1512 and 1513), focused on obstructions involving witnesses.113See Ellen S. Podgor et al., White Collar Crime 181–85 (2d ed. 2018) (reviewing the obstruction of justice statutes found in § 1512 and § 1513). These are typically described as crimes for tampering with a witness, victim, or informant11418 U.S.C. § 1512. or retaliating against one of these parties.115Id. § 1513. Chapter 73 of the criminal code currently has over twenty obstruction statutes.116Id. §§ 1501–21; see, e.g., id. § 1510.
Defendants have raised concerns as to whether prosecutors can continue to charge the generic obstruction crime found in 18 U.S.C. § 1503117Id. § 1503. when the conduct more appropriately fits one of the newer and more specific offenses. For example, this arises when the conduct could be charged under § 1512 or § 1513 for tampering or retaliating against a witness, but the prosecution instead decides to proceed under the generic provision found in § 1503. Prosecutorial discretion typically gives the government the power to proceed with the older generic statute despite the existence of a newer more specific offense.118See, e.g., United States v. LeMoure, 474 F.3d 37, 40–41 (1st Cir. 2007) (finding no ban in using section 1503 even when the conduct may fit under the newer witness tampering provisions); United States v. Tackett, 113 F.3d 603, 610–11 (6th Cir. 1997) (same). The government’s argument that prosecutions should be required to use § 1512 or § 1513 when the conduct involves witness obstruction is that there is “nothing in the legislative history expressly indicating that Congress intended to contract the purview of the omnibus clause.” See U.S. Dep’t of Just., Just. Manual § 9-69.100 (2020) (citing S. Rep. No. 532, 14–22, 27–29, reprinted in 1982 U.S.C.C.A.N. 2515, 2520–28, 2533–35; 128 Cong. Rec. H8203-05 (daily ed. Sept. 30, 1982) (section-by-section analysis of H.R. 7191); 128 Cong. Rec. H8469 (daily ed. Oct. 1, 1982) (House analysis of Senate amendments to House-passed bill)), https://www.justice.gov/archives/jm/criminal-resource-manual-1724-protection-government-processes-omnibus-clause-18-usc-1503. This, of course, raises questions as to whether the addition of specific obstruction offenses was truly needed for prosecuting the alleged misconduct.
c. Regulatory crimes
Overcriminalization is not limited to the growth of criminal statutes found in Title 18 of the U.S. Code. Although subject to scholarly criticism,119See Darryl K. Brown, Criminal Law’s Unfortunate Triumph over Administrative Law, 7 J.L. Econ. & Pol’y 657, 677–82 (2011) (discussing how reduction of criminal law could be achieved by accepting the civil penalties of the regulatory system as opposed to charging matters of regulation criminally); see also Larkin, supra note 34, at 749–54. it can also include regulatory statutes that have criminal penalties.120See Francis A. Allen, Book Review, 66 Yale L.J. 1120, 1121 (1957) (reviewing J. Ll. J. Edwards, Mens Rea in Statutory Offences (1955)) (“The demand for regulatory legislation first reached flood stage in the last half of the nineteenth century, when administrative law was in its early period of development and sophistication.”); see also Harry V. Ball & Lawrence M. Friedman, The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological View, 17 Stan. L. Rev. 197, 216–23 (1965) (discussing “[i]nteractions [b]etween [c]riminal [l]aw and [b]usiness [c]onduct”). For example, four-time winner of the Indianapolis 500 Bobby Unser was prosecuted121See Reining in Overcriminalization: Assessing the Problem, Proposing Solutions: Hearing Before the Subcomm. on Crime, Terrorism & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 35 (2010) (statement of Robert “Bobby” Unser, Personal Impact Witness). for violating a federal regulation that prohibited the use of a motorized vehicle on National Forest Wilderness lands.122Id.; 36 C.F.R. § 261.16(a)—now codified as 36 C.F.R. § 261.18(a)—prohibits “in a National Forest Wilderness (a) [p]ossessing or using a motor vehicle, motorboat[,] or motorized equipment except as authorized by Federal Law or regulation.” 36 C.F.R. § 261.18(a) (2019). Incorporated as a rule of regulation of the Secretary of Agriculture, 16 U.S.C. § 551 carries a “fine of not more than $500 or imprisonment for not more than six months, or both” when the regulation is violated. 16 U.S.C. § 551. Unser, who testified at one of the overcriminalization hearings before a subcommittee of the House Judiciary Committee, explained how he and another individual were lost and stranded in a sudden blinding snowstorm while on their snowmobiles.123Reining in Overcriminalization: Assessing the Problem, Proposing Solutions: Hearing Before the Subcomm. on Crime, Terrorism & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 28–34 (2010) (statement of Robert “Bobby” Unser, Personal Impact Witness). Although they lived to tell the details of this frightening event, the U.S. Forest Service eventually recovered the snowmobiles on federal lands and charged Unser with a criminal offense that came from a regulation of the Department of Agriculture, carrying a penalty of up to six months imprisonment.124Id. at 104. Although Unser did not receive a sentence of imprisonment, he noted in his testimony that he never intended to be on federal property and was unaware that he had entered federal lands when he entered the unmarked wilderness area during a blizzard.125Id. at 22. This argument did not carry weight as the mens rea of the individual violating the regulatory crime was irrelevant for this offense.
The incredible number of regulatory crimes, coupled with the impetus of federal agencies to undertake these prosecutions, presents an enormous depth to overcriminalization beyond the mere increase in federal offenses.126Ronald A. Cass, Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law, 15 Engage: J. Federalist Soc’y Prac. Groups 14, 14 (July 2014) (pointing out the growth of administrative regulations that have resulted in becoming part of the criminal law). Although the exact number of criminal regulations has never been ascertained, there have been statements saying that there may be as many as 300,000.127See Regulatory Crime: Identifying the Scope of the Problem: Hearing Before the Over-Criminalization Task Force of 2013 of the H. Comm. on the Judiciary, 113th Cong. 24 (2013) (statement of Rachel E. Barkow, Professor, NY Univ. Sch. L.) (“By some estimates, there are more than 300,000 federal regulations, administered by as many as 200 agencies, that are punishable by criminal penalties.”); see also Lavine, supra note 45, at 2 (noting that there are an estimated 4,450 federal crimes and “quite possibly as many as 300,000 federal regulations that can be enforced criminally”). But see Fissell, supra note 26, at 862–63 (questioning the accuracy of those estimates).
The agency role in the creation of the rules that then become part of the criminal structure has been challenged in courts as a violation of the nondelegation doctrine. For example, the drugs that might be included on a specific Controlled Substances Act schedule may be determined by the Attorney General in conjunction with the Drug Enforcement Agency, thus providing agency power to designate what becomes criminalized. The Supreme Court in Touby v. United States128500 U.S. 160 (1991). upheld this agency authority as not violating the nondelegation doctrine.129But see Fissell, supra note 26, at 855 (arguing that “administrative crimes” are an improper delegation of legislative authority). In Touby, the accused were convicted of “manufacturing and conspiring to manufacture” a drug that was “temporarily designated as a schedule I controlled substance” as part of the Controlled Substances Act.130Touby, 500 U.S. at 162. They raised the issue of whether the “legislative power to the Attorney General” and his “subdelegation to the Drug Enforcement Agency (DEA) was authorized by statute.”131Id. The Court allowed this temporary scheduling, a process that remained only for a limited period of time.132Id. at 164.
Likewise, in Gundy v. United States,133139 S. Ct. 2116 (2019). the Court reaffirmed that Congress can delegate its power “as long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.’”134Id. at 2123 (alteration in original) (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). In Gundy, the Court held constitutional a delegation to the Attorney General to determine the Sex Offender Registration and Notification Act (SORNA) applicability to pre-Act offenders.135Id.
But the ability of Congress to delegate its power to agencies that have regulations with criminal penalties remains controversial.136See Fissell, supra note 26, at 856–58. See generally F. Andrew Hessick & Carissa Byrne Hessick, Nondelegation and Criminal Law, 107 Va. L. Rev. (forthcoming 2020). But see Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 Harv. L. Rev. 469, 489–92 (1996) (arguing that DOJ should be given Chevron deference when interpreting criminal law). When looking at the criminal law and regulatory state, Professor Rachel E. Barkow aptly notes the deficiencies in the existing approach, which she argues is reflective of being victim to a “greater relaxation of the separation of powers.”137Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 994 (2006).
3. Beyond overfederalization
The problems inherent in overcriminalization are not limited to the increased number of statutes and regulations, as there are concerns beyond overfederalization. As noted by Professor Stephen F. Smith, the central issue with overcriminalization is not the number of criminal offenses (“quantitative”), but rather the construction of these crimes (“qualitative”).138Smith, supra note 2, at 537, 539 (highlighting the role of the courts in contributing to the blame in overcriminalization as well as “the serious crime-definition and sentencing problems” that are part of the overcriminalization problem). Overcriminalization presents obstacles to statutory interpretation, as well as confrontations to constitutional rights. For example, a growth of federal offenses that usurp the state policing powers can affect an appropriate federal-state balance. Likewise, statutes that are poorly worded can raise issues of vagueness, ambiguity, and overbreadth. Also, failing to insert appropriate mens rea terms in a statute can have due process implications. In addition to these considerations being beyond overfederalization and testing constitutional values, these overcriminalization arguments question whether punishment theory that serves as the heart of criminal law is being circumvented.
Federal statutes that encroach on states’ rights in criminal prosecution can shift community oversight of misconduct to the federal arena that may not be attuned to the players or issues specific to that community. This can clash with constitutional rights authorized to the states as part of their policing powers.139See John S. Baker, Jr., Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 Am. U. L. Rev. 545, 546–47 (2005). Professor Sara Sun Beale notes that the passage of the federal carjacking statute resulted from a “high profile carjacking in a suburb near Washington, D.C.”140Beale, supra note 2, at 755–56 (2005) (discussing “the crime du jour” or reactive legislation to events highlighted in the media). But the question that comes from this addition to the federal code is whether carjacking that does not involve multiple jurisdictions warrants federal resources and attention. As discussed later, even if a prosecutor does not regularly use the carjacking statute,141See Klein & Grobey, supra note 77, at 5–6 (noting how the federal carjacking statute, which has “historically generated controversy,” is “rarely, if ever, used”). the prosecutorial discretionary choice to do so raises concerns, especially in a world dominated by pleas as opposed to trials. More importantly, the infringement on state terrain can alter the appropriate federal-state balance.142See infra notes 187–68 and accompanying text.
In addition to a federal invasion of state criminal justice, the opaque statutory language used in some federal offenses radiates legal confusion. Issues of vagueness, ambiguity, and overbreadth arise when there are statutes that seek to criminalize large swaths of conduct without specifying explicitly what constitutes criminality.143But see Samuel W. Buell, The Upside of Overbreadth, 83 N.Y.U. L. Rev. 1491, 1492, 1495 (2008) (noting the desirability in codifying overbroad statutes that encompass new and developing conduct).
For example, in looking at the history of the mail fraud statute, its ambiguous language has provided several instances requiring Supreme Court clarity, two of which are discussed here. For years, prosecutors proceeded on mail fraud cases premised on “intangible rights” or “good government” despite no explicit language in the statute providing for this form of conduct. First, in a devasting decision for federal prosecutors, the Supreme Court in McNally v. United States,144483 U.S. 350, 355–58 (1987) (holding that mail fraud convictions premised on intangible rights are outside the scope of the mail fraud statute and precluded by a 1909 amendment to the statute). held that “intangible rights” were insufficient to meet the required “money or property” element of the mail fraud statute. Many lower court cases were overturned as a result of this decision, vacating prosecutions that, in many instances, could not be retried.145See M. Diane Duszak, Note, Post-McNally Review of Invalid Convictions Through the Writ of Coram Nobis, 58 Fordham L. Rev. 979, 980 & n.13, 984–85, 985 n.57 (1990) (discussing cases post-McNally that were premised on good government and the intangible right of honest services). Second, Congress responded following McNally with a definition statute that would permit the government to continue prosecuting fraud cases premised on “intangible rights.” The new definition statute found in 18 U.S.C. § 1346 provided that “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”146Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7603(a), 102 Stat. 4508 (1988) (codified at 18 U.S.C. § 1346). Following the passage of this new statute, arguments were made questioning the vagueness and ambiguity in the statutory language of the “intangible right to honest services.”147See United States v. Rybicki, 354 F.3d 124, 126, 155–56 (2d Cir. 2003) (en banc) (Jacobs, J., dissenting) (discussing many issues that present vagueness concerns from the statute). The Supreme Court eventually stepped in to clarify the meaning of this term, and in so doing, restricted it to “bribery and kickback[s].”148Skilling v. United States, 561 U.S. 358, 412 (2010). But from 1988 until the Court’s 2010 decision in Skilling v. United States,149561 U.S. 358 (2010). overcriminalization reigned in the form of uncertain statutory language with little recourse to those accused of fraud offenses. Even today, many questions remain in interpreting the language used in the mail fraud statute.
Advocates against overcriminalization have flagged the harmful effects of omitting explicit mens rea terms within a criminal statute. New statutes that have a weak mens rea or no requirement of intent are rampant in the federal criminal code, especially in offenses outside of Title 18.150See Walsh & Joslyn, supra note 15, at 6–7. Criminal law is founded on the requirement of a guilty mind. Although strict liability is warranted for violations such as traffic offenses, it becomes inefficient when there is no mens rea requirement for wrongful conduct. After all, if one does not know the illegality of the conduct, conformity with the law is less likely to occur.151See Regulatory Crime: Identifying the Scope of the Problem: Hearing Before the Over-Criminalization Task Force of 2013 of the H. Comm. on the Judiciary, 113th Cong. 25–26 (2013) (statement of Rachel E. Barkow, Professor, N.Y. Univ. Sch. L.) (citing Herbert Wechsler, A Thoughtful Code of Substantive Law, 45 J. Crim. L., Criminology & Police Sci., 524, 527–28 (1955)). Harvey A. Silverglate’s book, Three Felonies a Day,152Harvey A. Silvergate, Three Felonies a Day: How the Feds Target the Innocent (2009). and his work after the publication of this book,153Silvergate is a frequent columnist and op-ed author for the Wall Street Journal, Boston Globe, and L.A. Times. highlight how federal prosecutors have used federal criminal statutes to prosecute individuals who may be unaware of the criminality of their conduct.154See, e.g., Silvergate, supra note 152, at xxx–xxxi (noting that “prosecutors can find some arguable federal crime to apply to just about any [person], even for the most seemingly innocuous conduct”). This can be particularly true with regulatory crimes that are not malum in se but rather creations of legislative bodies. In recognition of overcriminalization, some have argued that there is a need for a default mens rea in order to assure prosecutions are against individuals who are aware that their conduct is wrong.155See Christopher Bates, Over-Criminalization and Mens Rea Reform, in Nat’l Ass’n Crim. Def. Laws. & U.S. Chamber Inst. for Legal Reform, The Enforcement Maze: Over-Criminalizing American Enterprise 72–73 (2018). Others call for a greater acceptance of an ignorance or mistake of law defense.156Edwin Meese III & Paul J. Larkin, Jr., Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725, 783–84 (2012) (“The proposition that a defendant should be able to raise a mistake of law defense to a charge that he committed a malum prohibitum crime sensibly balances society’s strong interest in enforcement of the law and society’s even more powerful interest in not punishing morally blameless parties.”).
B. Prosecutorial Discretion
Overcriminalization exacerbates prosecutorial discretion.157Although the negative aspects of prosecutorial discretion are noted here, when used appropriately, it can also offer an individualized approach to reviewing the actions of the accused and permitting the government not to proceed on a case when the actor’s conduct does not warrant criminal punishment. Increased federalization provides prosecutors with increased choices in selecting charges for prosecuting individuals and corporations. Poorly worded statutes allow prosecutors increased power to place alleged misconduct into the loosely fitting statutory framework. With both this “quantitative” increase in statutes and the “qualitative” statutory language failures, descriptive terms used by Professor Stephen Smith,158See Smith, supra note 2, at 359–40. vast prosecutorial power becomes evident. Prosecutors’ massive enforcement power contributes in several ways, including the ability to stretch criminal statutes,159Podgor, supra note 12, at 527, 530–32. charge “shortcut offenses”160Podgor, supra note 12, at 925, 967. as opposed to the actual wrongdoing, stack multiple charges for the same crime,161See Seigel & Slobogin, supra note 14, at 1125–28 (explaining the problems that arise when prosecutors charge the same conduct using multiple criminal offenses). and coerce plea bargains.162See infra notes 196–99 and accompanying text. Discretionary discovery practices used by federal prosecutors can also affect how a case proceeds against the accused.163See Ellen S. Podgor, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 Ga. St. U. L. Rev. 651, 655, 706 (1999) (noting that most prosecutors turn over Jencks material in advance of the statutory time constraints, but that in jurisdictions where this does not happen the accused is disadvantaged). The tie between prosecutorial discretion and overcriminalization also goes beyond the government’s charging powers. One also sees discretion employed in sentencing. For example, under the Federal Sentencing Guidelines, the prosecutor has the ability to file a 5K1.1 motion, which allows the court to reduce a sentence when the defendant provides substantial cooperation with the government. See U.S. Sent’g Guidelines Manual § 5K1.1 (U.S. Sent’g Comm’n 2018). A prosecutor’s discretion for the most part is allowed, as there are few limits to the government’s charging power.
There is minimal coordination in the use of this discretion, and the little guidance that is provided is seen in internal guidelines that are unenforceable at law.164See U.S. Dep’t of Just., Just. Manual, § 1-1.200 (2018), https://www.justice.gov/jm/jm-1-1000-introduction [https://perma.cc/HF9L-XNG2] (“The Justice Manual provides internal DOJ guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive, or procedural, enforceable at law by any party in any matter civil or criminal.”); see also Ellen S. Podgor, Department of Justice Guidelines: Balancing “Discretionary Justice,” 13 Cornell J.L. & Pub. Pol’y 167, 169, 175–77 (2004) (discussing the unenforceability of DOJ guidelines by third parties). The first formal guidance on general principles of prosecution can be traced back to Attorney General Benjamin Civiletti’s Principles of Federal Prosecution, which, in their current form, can be found in the Justice Manual.165See Alan Vinegrad, DOJ Charging and Sentencing Policies: From Civiletti to Sessions, 30 Fed. Sent’g Rep. 3 (2017); see also U.S. Dep’t of Just., Just. Manual, § 9-27.200 (2018), https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution [https://perma.cc/MZM3-Z6AF]. Throughout the years, Attorneys General have also provided to United States Attorneys and their assistants, memoranda on charging principles and their priorities for the DOJ, although these memos have not been consistent throughout the different Attorneys General.
Some administrations have taken the position that “the most serious, readily provable” offense should control in selecting the appropriate charges to bring against the accused.166See Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1424, 1442 (2008) (describing the shifting powers of key players in the criminal justice system with Supreme Court decisions related to sentencing). For example, a two-page memo issued by Former Attorney General Jeff Sessions takes this position in stating explicitly that “prosecutors should charge and pursue the most serious, readily provable offense,” although allowing for “circumstances in which good judgement would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.”167Memorandum from the Att’y Gen. to all Fed. Prosecutors, supra note 49 (establishing charging and sentencing policy for the DOJ). This policy marked a shift in the posture taken during the Obama Administration, when Attorney General Eric Holder recognized that charging drug crimes that could result in mandatory minimum sentences could have undue consequences.168Sari Horwitz & Matt Zapotosky, Sessions Issues Sweeping New Criminal Charging Policy, Wash. Post (May 12, 2017), https://www.washingtonpost.com/world/national-security/sessions-issues-sweeping-new-criminal-charging-policy/2017/05/11/4752bd42-3697-11e7-b373-418f6849a004_story.html. To alleviate these concerns, Attorney General Holder provided criteria such as drug trafficking organizations for the use of these charges.169Id.
Memoranda of Attorneys General, and, in some instances, the Deputy Attorneys General, are not limited to the charging of individuals, as there are memoranda that advise attorneys how and when to charge corporations and other entities.170See G. Douglas Jones & Christopher J. Nicholson, The Rules Have Just Changed: DOJ Issues New Guidance Targeting Individuals in Corporate Investigations, 77 Ala. Law. 264, 267–70 (2016) (discussing the Yates Memo). For example, the Holder,171Memorandum from the Deputy Att’y Gen. to All Component Heads & U.S. Att’ys (June 16, 1999) (establishing standards for bringing criminal charges against corporations). Thompson,172Memorandum from Paul J. McNulty, Deputy Att’y Gen., to Heads of Dep’t Components & U.S. Att’ys (superseding and replacing the former Thompson Memorandum, published January 20, 2003). McNulty,173U.S. Deputy Attorney General Paul J. McNulty’s Memo focused on encouraging corporate compliance, but also provided restraints on when the government may seek attorney-client material, requiring approval of the Deputy Attorney General prior to engaging in seeking this information. See Press Release, U.S. Dep’t of Just., U.S. Deputy Att’y Gen. Paul J. McNulty Revises Charging Guidelines for Prosecuting Corp. Fraud (Dec. 12, 2006) (providing new guidelines and revising the Thompson Memorandum, issued by former Deputy Attorney General Larry D. Thompson). Filip,174Memorandum from Mark Filip, Deputy Att’y Gen., to Heads of Dep’t Components & U.S. Att’ys (Aug. 28, 2008) (revising McNulty’s version of the Principles of Federal Prosecution of Business Organizations). and Yates175Memorandum from Sally Quillian Yates, Deputy Att’y Gen., to Assistant Att’ys Gen. & All U.S. Att’ys (Sept. 9, 2015) (addressing individual accountability for corporate wrongdoing). memoranda presented different considerations when charging corporations, as well as the criteria that would be used by the DOJ for companies wishing to obtain a non-prosecution agreement (NPA)176An NPA is when the government and the counsel of the company enter into a written agreement that provides that the government will not proceed with criminal charges if the company abides by the terms within the agreement. The agreement operates outside the authority of the courts. See Candace Zierdt & Ellen S. Podgor, Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing, 96 Ky. L.J. 1, 3 (2007) (discussing terms used in NPAs). or deferred prosecution agreement (DPA)177Like the NPA, a deferred prosecution agreement (DPA) is an agreement between the government and the entity. Id. at 2. The major difference between the NPA and DPA is that in a DPA, the matter is filed in a court, but the parties agree not to proceed with a finding unless there is non-compliance with the agreement. Id. at 4. Like a non-prosecution agreement, the terms typically include a hefty fine for the company and provisions assuring compliance. Id. at 5–6. Other terms can appear within these agreements, such as providing an ethics chair to a law school. Id. at 1 & n.5. from the government. While the Holder and Thompson memoranda focused on achieving corporate compliance by incentivizing the entity to cooperate with the government, the Yates memorandum went a step further in requiring that individual culpability be acknowledged and presented by the corporation to the government prior to the entity receiving a government benefit such as a NPA or DPA.178Alan S. Gutterman, Yates Memo Signals Heightened Focus of DOJ on Executives and Other Personnel of Corporate Wrongdoers, Thomson Reuters (Feb. 2016), https://store.legal.thomsonreuters.com/law-products/news-views/corporate-counsel/yates-memo-signals-heightened-focus-of-doj-on-executives-and-other-personnel-of-corporate-wrongdoers [https://perma.cc/X63J-LXP6].
Government memoranda also provide advice for sentencing. Professor Kate Stith notes the growth of these “system-wide” charging sentencing policies as “stimulated by the emergence of the Sentencing Guidelines.”179Stith, supra note 166, at 1442–43. For example, Attorney General Jeff Sessions’s Memo required that “prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.”180Memorandum from Att’y Gen., Off. Att’y Gen., to All Fed. Prosecutors (May 10, 2017) (establishing new charging and sentencing policies for the DOJ). Others allowed the specific facts presented to the court to be negotiated as part of a plea, allowing for a streamlined sentencing approach. The varying practices of allowing pre-charging plea agreements narrows what is presented to the court, in that the charging information filed by the government is limited to what has been agreed to by the parties.181Attorney General John Ashcroft allowed for “charge bargaining” but only when it adhered to the charging portion of his memo. Memorandum from John Ashcroft, Att’y Gen., to All Fed. Prosecutors (Sept. 22, 2003).
Federal guidance on charging individuals can also be found in specific enforcement policies of different divisions of the DOJ, and these too have changed under different administrations. For example, the DOJ’s Environment and Natural Resources Division’s (ENRD) enforcement priorities differed depending on the executive administration.182See Wash. Legal Found., Special Report: Federal Erosion of Business Civil Liberties 3-18 to -19 (2008) (providing a timeline for different DOJ policies). In a memo from Acting Assistant Attorney General Jeffrey H. Wood to ENRD Section Chiefs and Deputy Section Chiefs, Wood notes seven topics related to the DOJ and agencies’ use of criminal prosecution for regulatory offenses: “The enforcement principles articulated in this memorandum are: (1) adhering to the impartial rule of law; (2) enhancing cooperative federalism; (3) exercising pragmatic decisionmaking; (4) employing the full range of enforcement tools; (5) coordinating with agencies; (6) collaborating with the United States Attorneys’ Offices; and (7) protecting taxpayers and the public fisc.” Memorandum from Jeffrey H. Wood, Acting Assistant Att’y Gen., Env’t & Nat. Res. Div., to ENRD Section Chiefs & Deputy Section Chiefs 1–8 (Mar. 12, 2018). The enforcement priorities were listed as: “The enforcement priorities to which ENRD should give particular attention at this time include cases that align with: (1) advancing the “Back to Basics” focus on clean water, clean air, and clean land; (2) maintaining the integrity of environmental laws and programs; (3) fighting fraud and recovering taxpayer funds; (4) fighting violent and/or organized crime; and (5) protecting America’s workers, competitiveness, and infrastructure.” Id. at 1, 9–11.
But even with internal federal guidance provided to Assistant United States Attorneys (AUSAs), prosecutorial discretionary power remains strong. Many scholarly works have reflected on the harms of prosecutorial discretion, including the seminal article by Professor James Vorenberg183James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521 (1981) (discussing the need to reexamine prosecutorial discretion). and book by Professor Angela J. Davis.184Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor 123–41 (2007) (looking at prosecutorial misconduct in the form of abuse of discretion). Particularly noteworthy here is how discretion can cause disparate harms to minority communities. In this regard, this discretion should not be seen exclusively as overcriminalization. As noted by Professor Alexandra Natapoff, underenforcement also remains a concern when certain groups are targeted for criminality while others remain immune.185See Natapoff, supra note 5, at 1717 (discussing different “zones” of underenforcement, where the state “routinely and predictably fails to enforce the law to the detriment of vulnerable residents”); see also Randall Kennedy, Race, Crime and the Law 19 (1997) (“[T]he principal injury suffered by African-Americans in relation to criminal matters is not overenforcement but underenforcement of the laws.”). It is important to consider both the act and actor, acknowledging that a focus on just one of these two parts or players of the process may provide distinct consequences in use of the prosecutor’s discretion.186Helen Silving, Toward a Contemporary Concept of Criminal Justice, 4 Isr. L. Rev. 479, 479 (1969) (discussing the two classic theories of criminal justice: the “objectivistic,” focusing on the act, and the “subjectivistic,” looking at the actor).
2. Prosecutorial charging power
When focusing on the relationship between overcriminalization and prosecutorial discretion, an example that unites these two themes is when prosecutors stretch criminal statutes to encompass conduct that is perceived by them to be improper but is actually more fitting in another realm—such as a prosecution that belongs under a state’s police powers. In Jones v. United States,187529 U.S. 848 (2000). the Court examined a federal prosecution of an alleged home arson to ascertain whether it was properly brought under the federal arson statute.18818 U.S.C. § 844(i); see also Jones, 529 U.S. at 850. In reversing the conviction, the Court highlighted that this type of prosecution could alter the appropriate federal-state balance in the federal system.189Jones, 529 U.S. at 858 (“[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes.”) (internal quotations omitted). The Court found that a home arson was not meant to be included in the federal arson statute, a statute enacted as part of the Organized Crime Control Act of 1970.190Pub. L. No. 91-452, § 1102, 84 Stat. 922, 952 (1970). The prosecutor’s stretching of this statute to include an arson of a private, owner-occupied dwelling house would allow a common law crime that was not attenuated to interstate commerce to be federalized. Had the federal arson statute not existed, this case could not have been indicted by the federal government and would have been left for state prosecution.
Overcriminalization also gives prosecutors an increased statutory choice of charges to bring against an accused. Shortcut offenses are particularly prone to possible misuse.191E.g., Podgor, supra note 13, at 930, 954 (describing “perjury trap[s],” where prosecutors illicit testimony from individuals in a grand jury with the explicit purpose of using that testimony to later charge the individual with perjury). See generally id. at 928–30, 952–56 (discussing different prosecution shortcuts such as the use of wiretaps, searches, and easily proven charges). As a result of overfederalization, what may have initially been charged as a classic fraud case may instead be brought using charges of perjury, obstruction of justice, or false statements. In technical, white-collar, document-driven cases, the government may prefer to use a statute that is easily understandable by the jury—a shortcut offense—such as perjury or false statements.192Some scholars refer to “shortcuts” that use perjury, obstruction of justice, and false statements as “cover-up crimes,” “pretextual charging,” or “process-crime prosecutions.” See Stuart P. Green, Uncovering the Cover-up Crimes, 42 Am. Crim. L. Rev. 9, 9–13, 28 (2005) (discussing the government’s use of “cover-up” statutes and its relation to moral blameworthiness); Harry Litman, Pretextual Prosecution, 92 Geo. L.J. 1135, 1137 (2004) (discussing the “‘pretextual’ use of federal prosecutorial discretion”); Daniel C. Richman & William J. Stuntz, Essay, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum. L. Rev. 583, 583–85, 588 (2005) (discussing the origins of pretextual prosecutions); Erin Murphy, Manufacturing Crime: Process, Pretext, and Criminal Justice, 97 Geo. L.J. 1435, 1435 (2009) (discussing “process crime[s]”). For example, in United States v. Stewart,193433 F.3d 273 (2d Cir. 2006). the government did not bring charges of insider trading, despite this being the conduct initially investigated. Instead, Martha Stewart was prosecuted for lying at a SEC hearing.194The charges against Stewart were for conspiracy, obstruction of justice, and perjury. See Superseding Indictment at 1, United States v. Stewart, 323 F.3d 273 (2d Cir. 2006) (No. S1 03 Cr. 717 (MGC)), 2003 WL 25730072.
From an efficiency standpoint, the use of a short-cut offense may appear as a prosecutorial strength in that the use of these crimes allows for an easily proved case that will assure a conviction. From the perspective of deterrence and legitimacy, however, this is less appealing. Will the public be deterred from committing the improper conduct if the charges do not mirror the most obvious criminality, and instead the prosecution is premised on less onerous, but more easily provable, conduct?195See Podgor, supra note 13, at 964–68. The public learns that the perpetrator of a crime is being punished but does not see or understand the real underlying criminality committed by that individual.
Prosecutorial discretion as an outgrowth of overcriminalization is also demonstrated in the use of plea bargaining.196See Lucian E. Dervan, Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization, 7 J.L. Econ. & Pol’y 645, 645 (2011) (discussing the “co-dependent nature of plea bargaining and overcriminalization”). This is particularly important as our criminal justice process is one of pleas, as only a small percentage of cases in the federal system actually proceed to trial. With 97.6% of the federal cases resolved via a plea agreement,197See U.S. Sent’g Comm’n, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics 56–58 tbl.11 (2019) (providing guilty plea and trial data for Fiscal Year 2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2019/2019-Annual-Report-and-Sourcebook.pdf [https://perma.cc/2VUW-NF7F]. it is important to consider the effect of overcriminalization on this process and the significance of the prosecutorial role in this context.198See generally Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463 (2004) (discussing the many factors that can affect plea bargaining decisions). Prosecutors have the discretion to not only pick and choose the charges against the accused but also to determine who shall receive a plea agreement and what the terms of that agreement will be. Prosecutors have the added ability to threaten new charges in order to secure a plea from the accused. For example, money laundering charges are often tacked onto white collar offenses if a defendant declines to accept a plea agreement to the charge.199See Adams, supra note 102, at 532–34 (discussing how prosecutors have been allowed to add money laundering charges in white collar fraud cases). With the increased number of charges available for selection by prosecutors, and enormous penalties in cases when the accused is facing a mandatory-minimum penalty, the ability of the prosecutor to secure a plea is made easier, even in situations when the accused may be innocent.200See Ellen S Podgor, White Collar Innocence: Irrelevant in the High Stakes Risk Game, 85 Chi. Kent L. Rev. 77, 77–78 (2010) (discussing the risk that a trial penalty may motivate an innocent individual to plead guilty); see also Nat’l Ass’n Crim. Def. Laws. & Found. for Crim. Just., The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to save It 17 (2018) (noting how criminally accused individuals face greater penalties if they assert their right to a trial as opposed to pleading guilty). Prosecutorial power in securing a plea may also be influenced by the government’s role in bail, the possible release from custody, and in some instances the type and location where imprisonment will be served. See id. at 16, 24–25.
Overcriminalization also allows a prosecutor to overcharge and, in some instances, stack multiple charges201See Seigel & Slobogin, supra note 14, at 1125–27 (explaining the problems that arise when prosecutors charge the same conduct using multiple criminal offenses). against the accused for the same conduct. One government benefit to overcharging is that the accused is more apt to negotiate a plea that will eliminate some of the charges and possibly provide a lower sentence. A second government advantage occurs here when the defendant does not plead guilty but instead proceeds to trial. Having multiple counts for the same conduct offers the possibility that the jury will convict of some charges through a compromised jury verdict.
Discretion also becomes a concern when the system is improperly politicized.202See generally Ellen S Podgor, The Tainted Federal Prosecutor in an Overcriminalized Justice System, 67 Wash. & Lee L. Rev. 1569, 1582 (2010) (discussing the importance of neutrality in the DOJ when operating in an overcriminalized environment). Although the appointment of the Attorney General and U.S. Attorneys has a political component in the selection process because they are appointed by the President of the United States,203See generally James Eisenstein, The U.S. Attorney Firings of 2006: Main Justice’s Centralization Efforts in Historical Context, 31 Seattle U. L. Rev. 219, 242–43 (2008) (discussing the political role in the appointment of U.S. Attorneys). those serving within the office are non-political civil servants operating under the Hatch Act.204Id. at 227; see also Hatch Act of 1939, 5 U.S.C. § 1502(a)(1)–(2) (2018) (prohibiting civil servants from engaging in partisan political activities). There are past reported instances of political influences being raised within the DOJ and reviewed by Inspectors General.205See U.S. Off. Inspector Gen. & U.S. Off. Pro. Resp., U.S. Dep’t of Just., An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General 35–40 (2008); U.S. Off. Inspector Gen. & U.S. Off. Pro. Resp., U.S. Dep’t of Just., An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program 98–102 (2008); U.S. Off. Inspector Gen. & U.S. Off. of Pro. Resp., U.S. Dep’t of Just., An Investigation of Allegations of Politicized Hiring and Other Improper Personnel Actions in the Civil Rights Division 64–65 (2008). When the system is overcriminalized and the government has strong discretionary powers, adding in the possibility of the decision making being influenced by political motives remains a concern.
In addition to the prosecutor’s discretion regarding who to charge, when to charge, what to charge, and who will receive a plea agreement,206See United States v. Batchelder, 442 U.S. 114, 123–26 (1979) (discussing the broad prosecutorial power to select charges); see also United States v. Mandujano, 425 U.S. 564, 595–96 (1976) (discussing prosecutorial authority in when to bring criminal charges); Ellen S. Podgor, The Ethics and Professionalism of Prosecutors in Discretionary Decisions, 68 Fordham L. Rev. 1511, 1531 (2000) (discussing prosecutorial discretion and the need for ethical decision making); Vorenberg, supra note 183, at 1522–37 (1981) (discussing the breadth of prosecutorial discretion). one should note that prosecutors have the discretion of not bringing charges in cases they deem appropriate.207One guideline limitation is found in the government’s petite policy which advises prosecutors that except in unusual situations, charges should not be brought if the state has previously proceeded with the prosecution. See U.S. Dep’t of Just., Just. Manual, § 9-2.031 (2020). Prosecutors are not required to be transparent on their decision making process, and they do not have to issue declination statements when they decide not to proceed. See Jessica A. Roth, Prosecutorial Declination Statements, 110 J. Crim. L. & Criminology 477, 527–29 (2020) (discussing ethics rules related to prosecutorial declination statements). When a prosecutor brings a case and then decides to nolle prosequi208Black’s Law Dictionary (11th ed. 2019) (defining nolle prosequi as a formal notice that the government has abandoned prosecution). the case prior to a resolution on the case, it is typically the prosecutor who has this sole power of dismissal.209See Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (citing L.B. Schwartz, Federal Criminal Jurisdiction and Prosecutor’s Discretion, 13 L. & Contemp. Probs. 64, 83 (1948)). Although the issue of whether prosecutors can dismiss a case after the entry of a plea was raised in the prosecution of Michael Flynn, the matter was not resolved because of procedural issues regarding the use of a writ of mandamus. See In re Flynn, 973 F.3d 74 (D.C. Cir. 2020). The issue is mooted because of President Trump’s grant of a “Full Pardon to General Michael T. Flynn.” Press Release, Statement from the Press Secretary Regarding Executive Grant of Clemency for General Michael T. Flynn (Nov. 25, 2020), https://www.whitehouse.gov/briefings-statements/statement-press-secretary-regarding-executive-grant-clemency-general-michael-t-flynn [https://perma.cc/R9G8-R5D8]. Unlike some countries, the United States does not allow private prosecutors to participate in the prosecution.210See generally Verónica Michel & Kathryn Sikkink, Human Rights Prosecutions and the Participation Rights of Victims in Latin America, 47 L. & Soc’y Rev. 873, 873, 876 (2013) (discussing victims’ participation rights and private prosecution in Latin America as compared to the United States). Even the legislature is limited in reversing a failure to charge if they decide to pass new laws to permit a prosecution because of no existing statutory base. The ex post facto provision of the U.S. Constitution precludes charging an individual if the legal prohibition did not exist at the time of the crime.211U.S. Const. art. I, § 9, cl. 3.
3. Charging power limitations
The wide discretion afforded prosecutors in their decision making role has been noted in several Supreme Court decisions,212See Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 741 (1996) (discussing decisions within prosecutorial discretion, including immunity grants) which have also noted that such discretion is not “unfettered.”213Wayte v. United States, 470 U.S. 598, 608 (1985) (“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979))). That said, selective prosecution and prosecutorial misconduct are two arguments that defendants make when they believe that prosecutors have abused their prosecutorial power by either uniquely selecting a specific defendant to proceed against or using an improper motive for charging the accused.214See generally Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U. L.Q. 713, 719 (1999) (discussing prosecutor selectivity and misconduct). These arguments are seldom successful.
Limits to prosecutorial discretion are found in court opinions,215See, e.g., United States v. Armstrong, 517 U.S. 456, 465 (1996) (“The requirements for a selective-prosecution claim draw on ‘ordinary equal protection standards.’” (quoting Wayte, 470 U.S. at 608)); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (holding that a prosecutor must have probable cause before prosecuting). ethics rules,216See Model Rules of Pro. Conduct r. 3.8 (Am. Bar Ass’n 2018) (providing that a prosecutor “shall . . . refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause”); see also Crim. Just. Standards for the Prosecution Function § 3-4.3 (Am. Bar Ass’n 2017) (discussing minimum requirements for filing and maintaining criminal charges). presidential pardons,217See infra notes 231–33 and accompanying text (discussing presidential pardons as a limit to prosecutorial power). and statutory mandates such as the statute of limitations for an offense.218Prosecutorial discretion is limited by the use of improper factors. See United States v. LaBonte, 520 U.S. 751, 762 (1997) (“[D]iscretion is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors.”). Additionally, there are ethical restrictions that apply to prosecutorial decision making. Supra note 216. Obviously if there is no crime available for charging, a prosecutor has no basis for proceeding. But as previously noted, prosecutors will often resort to generic statutes such as conspiracy, mail fraud, or “shortcut offenses” like perjury and false statements, when the defendant’s activities do not fit neatly into the offense most closely aligned to the conduct. That said, absent a statutory basis for the prosecution, even prosecutors’ discretionary powers cannot succeed in bringing a criminal charge.219“It is well settled that there are no common law offences against the United States,” United States v. Eaton, 144 U.S. 677, 687 (1892), so a prosecutor cannot wield his or her discretionary power without a statutory enactment that creates a crime. See Whalen v. United States, 445 U.S. 684, 689 (1980) (“[W]ithin our federal constitutional framework[,] . . . the power to define criminal offenses . . . resides wholly with the Congress.”). Likewise, if the prosecutor fails to adhere to the statutory time limits set forth in the statute of limitations for the crime, the prosecution will likely be precluded.
The federal prosecutor also needs to proceed through a grand jury when processing criminal felony charges. The grand jury can be considered a limit to the prosecutorial power in that felony charges require an indictment by a grand jury220“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .” U.S. Const. amend. V. unless this is waived by the accused, something that regularly occurs when the parties negotiate a plea and an information is filed in place of an indictment. But the reality is that few grand juries will stop the prosecution’s choice of charges as there are few runaway grand juries,221See generally Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 Creighton L. Rev. 821, 822–23 (2000) (explaining what is meant by a runaway grand jury when the grand jury goes beyond the prosecutor’s directives in either bringing additional indictments, subpoenaing additional witnesses, or requesting more information than provided by the prosecutor). and the common parlance is that the prosecutor could indict a ham sandwich if he or she wanted to do so.222Id. at 839 & n.106 (citing Tony Mauro & Kevin Johnson, Grand Jury ‘Very Lonely’ for Witness, USA Today, Mar. 3, 1998, at 01A (noting the source of the “ham sandwich” phrase as one coined by Judge Sol Wachtler)).
There are, however, remedies found in appellate decisions when the prosecutor has stretched a statute beyond its original statutory bounds.223See generally Podgor, supra note 13, at 526–28 (discussing a variety of white-collar cases brought in the federal system that demonstrate prosecutorial stretching of a statute). For example, the Supreme Court reversed the government’s attempt to use a federal obstruction of justice statute that was part of the Sarbanes-Oxley Act to charge a fisherman who failed to return undersized fish back to shore.224Yates v. United States, 574 U.S. 528, 531, 549 (2015). The Court, in Yates v. United States,225574 U.S. 528 (2015). refused to allow prosecutors to stretch an obstruction statute,22618 U.S.C. § 1519. which was intended for prosecuting improper destruction of documents.227Yates, 574 U.S. at 536. The Court found that a fisherman catching undersized grouper and not following the instructions of a Florida Fish and Wildlife Conservation Commission officer, who had instructed the fisherman to bring the fish that had been caught back to shore, was not within the scope of this obstruction of justice legislation that was “designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation.”228Id. at 532. Although the dissent preferred a literal approach to the statute’s use of the term “tangible object,” finding that fish could be such, they did note their concern with “overcriminalization and excessive punishment in the U.S. Code.”229Id. at 553, 569 (Kagan, J., dissenting). This case is not an anomaly as there have been many other cases in which the Supreme Court or lower courts have held that prosecutors exceeded their discretion in proceeding with conduct beyond the statutory language.230See, e.g., McDonnell v. United States, 136 S. Ct. 2355, 2367–68 (2016) (holding that a governor setting up meetings was not an “official act” for purposes of the bribery statute); Cleveland v. United States, 531 U.S. 12, 15 (2000) (holding that the mail fraud statute’s property requirement did not include regulatory licenses).
A final limitation to prosecutorial discretion is seen in the President’s use of the pardon power, which provides the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”231U.S. Const. art. II, § 2, cl. 1. Although many presidential pardons have been seen as controversial,232See Scott Ingram, Presidents, Politics, and Pardons: Washington’s Original (Mis?)Use of the Pardon Power, 8 Wake Forest J.L. & Pol’y 259, 259–62 (2018) (describing the presidential power to pardon and some of the controversial pardons that have been granted); Margaret Colgate Love, Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest, 47 U. Toledo L. Rev. 89, 89–90 (2015) (discussing the presidential pardon process). there are few limits to this presidential power.233See Paul F. Eckstein & Mikaela Colby, Presidential Pardon Power: Are There Limits, and, if Not, Should There Be?, 51 Ariz. St. L.J. 71, 84–85 (2019) (discussing the “seemingly absolute” power of the presidential pardon and that no congressional or judicial limits exist on the power). As such, valued or not, the presidential pardon power can serve to reduce prosecutorial discretion.
II. Underregulation and Underenforcement
A. Reducing Regulations
There is a flip side to the growth and extension of criminal legislation, that being, a decrease in regulation and underenforcement by agencies. The unitary executive theory,234See Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 Va. L. Rev. 395, 455–56 (2020) (explaining “unitary executive” in the context of foreign affairs); see also Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 570 (1994) (discussing “unitary executive”). as presented by the Trump Administration, highlights the key participatory role the executive is playing in the regulatory structure. To some it is reminiscent of the Lochner Era when government regulation was limited.235Lochner v. New York, 198 U.S. 45, 64–65 (1905) (overturning a state labor statute that restricted work hours); see also Miriam H. Baer, Law Enforcement’s Lochner, 105 Minn. L. Rev. (forthcoming 2021); Mila Sohoni, The Trump Administration and the Law of the Lochner Era, 107 Geo. L.J. 1323, 1325 (2019) (noting the correlation between the Lochner and Trump discourse); Amy Kapczynski, The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy, 118 Colum. L. Rev. Online 179, 179–81 (2018) (stating that the First Amendment has been “Lochneriz[ed]” to combat FDA regulations as restrictive of freedom of speech). The past administration’s deregulation was deliberate. President Trump’s Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs of January 30, 2017 highlighted his intent to remove regulations faced by businesses.236See Brian Naylor, Trump Acts to Roll Back Regulations on Businesses, Nat’l Pub. Radio (Jan. 30, 2017, 10:49 AM), http://www.npr.org/2017/01/30/512445032/trump-acts-to-roll-back-regulations-on-businesses [https://perma.cc/4AGV-TVEV] (reporting President Trump saying “We’re cutting regulations . . . for small business and large business” as he signed Executive Order 13771). As of March 2019, the Trump Administration had “514 deregulatory rulemakings” across several agencies.237Keith B. Belton & John D. Graham, Am. Council for Cap. Formation, Trump’s Deregulatory Record: An Assessment at the Two-Year Mark 26 (2019), http://accf.org/wp-content/uploads/2019/03/ACCF-Report_Trump-Deregulatory-Record-FINAL.pdf [https://perma.cc/D3BE-3GVS].
This Executive Order reducing regulation focuses on controlling regulatory costs238Executive Order 13771 states as its purpose: “It is the policy of the executive branch to be prudent and financially responsible in the expenditure of funds, from both public and private sources. In addition to the management of the direct expenditure of taxpayer dollars through the budgeting process, it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. Toward that end, it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” Exec. Order No. 13,771 § 1, 3 C.F.R. 284 (2018). and requires that if an executive department or agency “publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”239Id. § 2. There was also a fiscal constraint for 2017 that required that the “total incremental cost of all new regulations” had to “be no greater than zero.”240Id. § 2(b). The “total incremental cost” includes the new and repealed regulations, although there is a caveat if “otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).” Id. Thus, if proposing a new regulation, not only was the requirement to remove two prior regulations, but also, absent special permission, to assure that the costs of the new regulation would not exceed the costs of the eliminated regulations. The rulemaking requirements of the Administrative Procedure Act (APA) applied throughout this process with guidance to heads of agencies on implementation.241Id. § 2(c)–(d). Exemptions were provided, including “regulations issued with respect to a military, national security, or foreign affairs function of the United States.”242Id. § 4(a).
The Brookings Institution, inspired by Executive Order 13771, created a regulatory tracker that, allowed one to follow regulatory changes including “notable guidance and policy revocations, and important court battles” across several major categories,243Tracking Deregulation in the Trump Era, Brookings Inst., https://www.brookings.edu/interactives/tracking-deregulation-in-the-trump-era [ https://perma.cc/AW44-S8TG]. It also covers “some deregulatory actions that don’t proceed through notice and comment.” Cayli Baker et al., Explaining the Brookings Deregulatory Tracker, Brookings Inst. (Oct. 18, 2018), https://www.brookings.edu/blog/up-front/2018/10/18/explaining-the-brookings-deregulatory-tracker [https://perma.cc/MQE7-3HNP]. including, agriculture, “children, youth, and families,” education, environmental, financial, health, housing, labor, telecom, transportation, and “other.”244Tracking Deregulation in the Trump Era, supra note 243 (click the “Filters” drop-down menu to get a list of all categories). Media outlets245See, e.g., Nadja Popovich et al., The Trump Administration Is Reversing 100 Environmental Rules. Here’s the Full List., N.Y. Times (July 15, 2020), https://www.nytimes.com/interactive/2019/climate/trump-environment-rollbacks.html (reporting that nearly seventy rules and regulations have been reversed and more than thirty are in progress). and scholars246State Energy & Env’t Impact Ctr., N.Y.U. Sch. L., Climate & Health Showdown in the Courts 3 (2019), https://www.law.nyu.edu/sites/default/files/climate-and-health-showdown-in-the-courts.pdf [https://perma.cc/HE3Z-NGKQ] (listing critical areas in which state attorneys general may resist the Trump Administration’s environmental deregulation efforts). have also followed deregulation initiatives, sometimes with differing perspectives of its values. In some instances, groups have developed websites with a focus on specific activities such as financial247See, e.g., Reg. Tracker: April 16 to April 30, Cadwalader Cabinet (Apr. 16, 2020), https://www.findknowdo.com/news/04/16/2020/reg-tracker-april-16-april-30?utm_campaign=Cabinet%20Newsletter&utm_source=Newsletter&utm_medium=Email [https://perma.cc/86E6-4QUY] (tracking deadlines for when comments are due). or environmental248Regulatory Rollback Tracker, Harv. L. Sch.: Env’t & Energy L. Program, https://eelp.law.harvard.edu/regulatory-rollback-tracker [https://perma.cc/SD4B-D9S9] (tracking environmental regulatory rollbacks and providing open comment periods). regulatory activity. Some, of course, look to the Office of Information and Regulatory Affairs for reporting on regulatory actions.249Regulatory Rollback Tracker, Harv. L. Sch.: Env’t & Energy L. Program, https://eelp.law.harvard.edu/regulatory-rollback-tracker [https://perma.cc/SD4B-D9S9] (tracking environmental regulatory rollbacks and providing open comment periods).
The financial effect of deregulation has been applauded by some, and it has been noted that “[i]n 2017, the Trump [A]dministration added 3,281 rules to the Federal Register, the fewest since records began in the 1970s.”250Mary Kate Hopkins, Donald Trump’s Regulation Cuts Are Having an Effect, Fin. Times (May 20, 2019), https://www.ft.com/content/e7f02684-78a5-11e9-b0ec-7dff87b9a4a2. The Trump Administration touted this “historic deregulation” as having “slashed regulatory costs by nearly $50 billion, with savings reaching $220 billion once major actions are fully implemented.”251President Trump’s Historic Deregulation is Benefitting All Americans, White House (Oct. 21, 2019), https://www.whitehouse.gov/briefings-statements/president-trumps-historic-deregulation-benefitting-americans [https://perma.cc/5H2J-JXXQ]; see also Juliet Eilperin & Brady Dennis, Trump Proposes Change to Environmental Rules to Speed up Highway Projects, Pipelines and More, Wash. Post (Jan. 9, 2020, 4:27 PM), https://www.washingtonpost.com/climate-environment/white-house-wants-to-change-rules-to-speed-up-highway-projects-pipelines-drilling/2020/01/08/4e248fda-325a-11ea-9313-6cba89b1b9fb_story.html (discussing changes to environmental regulations to increase the ability to build “new mines, pipelines and hundreds of other projects around the country”). The Office of Information and Regulatory Affairs, Office of Management and Budget, states that for 2019 agency reform efforts “[e]liminated $13.5 billion in overall regulatory costs across the government” and “$50.9 billion in overall regulatory costs across the government since 2017.” Regulatory Reform Results for Fiscal Year 2019, Off. Info. & Regul. Affs. https://www.reginfo.gov/public/do/eAgendaEO13771 [https://perma.cc/Y4W2-XP6B].
But others question the benefits of this deregulation, noting that the status of our environment, individual rights, and existing disparities can be pushed aside in a strict cost-benefit analysis.252Linda Qiu, Trump Says ‘No President Has Ever Cut so Many Regulations.’ Not Quite., N.Y. Times (Feb. 23, 2018), https://www.nytimes.com/2018/02/23/us/politics/trump-says-no-president-has-ever-cut-so-many-regulations-not-quite.html (discussing the inaccuracy of the claims in the President’s Fact Sheet including that the White House’s database claimed sixty-seven “deregulatory” actions on a chart when the database had only thirty-four “deregulatory” actions). Also noted is that the federal decrease in regulatory function has resulted in states playing an increased role in the regulatory sphere.253Belton & Graham, supra note 237, at 36. (finding that “[a]n unintended consequence of federal deregulation under Trump has been determined growth in state and local regulations on some issues”). In addition to an increased cost to states, there can be unique challenges to businesses that now have multiple constituencies they need to monitor for compliance.254
Having multiple regulatory agencies pursuing conduct has presented an issue to companies trying to comply with existing laws and regulations. See Jennifer Williams-Alvarez, White-Collar Enforcement Under Trump: From Corporate Criminal Liability to Regulatory Pile-On, Corp. Couns. (Aug. 11, 2017, 3:51 PM), https://www.law.com/corpcounsel/almID/1202795338018/WhiteCollar-Enforcement-Under-Trump-From-Corporate-Criminal-Liability-to-Regulatory-PileOn/?mcode=1202615622021&curindex=1 (discussing how different financial regulators “pile-on” to investigate one matter). Even before the Trump Administration came to office, federal oversight of state enforcement may have proven weak, as was found in a 2011 Report on the Environmental Protection Agency’s (EPA) oversight of state enforcement.255Off. Inspector Gen., U.S. EPA, Rep. No. 12-P-0113, EPA Must Improve Oversight of State Enforcement 6, 8–9 (2011), https://www.epa.gov/sites/production/files/2015-10/documents/20111209-12-p-0113.pdf [https://perma.cc/W3VS-5564]. On the other side, a failure of the federal system to exert control may result in focused regulation by a state to serve its localized constituency, and in that regard the state stepping up to the plate may be welcomed.256See generally Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553, 558 (2001) (noting that public choice theories do not call for federal intervention in environmental regulatory matters).
It is important to note that some of the recent agency deregulation is tied to new legislative initiatives as opposed to being acts solely from the executive.257See Joan MacLeod Heminway, Designing Deregulation: The POTUS’s Place in the Process, 87 UMKC L. Rev. 653, 662 (2019) (examining the role of the President in effectuating deregulation). For example, the passage of the 2018 Economic Growth, Regulatory Relief, and Consumer Protection Act258Pub. L. No. 115-174, 132 Stat. 1296 (2018). (EGRRCPA) had the effect of revising financial regulations resulting from the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank).259See generally Thomas W. Joo, Lehman 10 Years Later: The Dodd-Frank Rollback, 50 Loy. U. Chi. L.J. 561 (2019) (discussing how the deregulation of Dodd-Frank will result in less accountability in the financial sector); see also Hilary J. Allen, The Pathologies of Banking Business as Usual, 17 U. Pa. J. Bus. L. 861, 875–84 (2015) (discussing the pathologies of the financial crises). Although this modification to the regulatory structure came from a legislative-statutory base,260President Trump had advocated for dismantling Dodd-Frank when he campaigned for office. See Marilyn Geewax, Trump Team Promises to ‘Dismantle’ Dodd-Frank Bank Regulations, Nat’l Pub. Radio (Nov. 10, 2016, 4:48 PM), https://www.npr.org/sections/thetwo-way/2016/11/10/501610842/trump-team-promises-to-dismantle-dodd-frank-bank-regulations [https://perma.cc/A3KS-KEBM]. Claims of advocating for deregulation are not unique to President Trump and were asserted for in both the Carter and Reagan Administrations. See Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. Chi. L. Rev. 407, 415 (1990) (noting that even in the Carter Administration there were limiting actions to “curb the proliferation of toxic substances”); see also Eric J. Spitler, The Long Game: The Decade-Long Effort to Dismantle the Dodd-Frank Act, 24 N.C. Banking Inst. 1, 4–5 (2020) (lobbying to “dismantle” Dodd-Frank was apparent long before the Trump Administration). the Executive plays a role in accompanying rule-making that emanates from this Act.261See Joo, supra note 259, at 566–67 (describing how Dodd-Frank was dismantled through rule-making and other means, such as the EGRRCPA and the Congressional Review Act). When discussing regulatory activity, one needs to consider the source of the action—whether it be the agency or the legislature262Richard L. Revesz, Congress and the Executive: Challenging the Anti-Regulatory Narrative, 2018 Mich. St. L. Rev. 795, 796–97 (2018) (discussing how the Trump Administration has failed to use a cost-benefit analysis for its anti-regulatory approach).—as even though the connection between the two exists, some argue agency action is necessary to avoid “congressional gridlock.” In a politically polarized society, an agency’s ability to act can be less contentious than getting agreement among elected legislators, who are directly answerable to voters. Others, however, argue that this presents delegation issues in that unelected administrative officials are legislating without appropriate authority.263See, e.g., Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002) (claiming that the nondelegation doctrine “raises fundamental questions about democracy [and] accountability”). Although this Article does not consider issues of delegation or voice an opinion on this debate, it notes that these separation of powers concerns have been raised.264Supra notes 136–37 and accompanying text. Equally consequential when examining agency activity is whether the activity comes under the adjudicative or rulemaking aspects of the agency,265See generally William D. Araiza, Agency Adjudication, the Importance of Facts, and the Limitations of Labels, 57 Wash. & Lee L. Rev. 351, 355 (2000) (commenting on agency discretion in its functions regarding rulemaking and adjudication). as well as the deference that courts should give in interpreting agency action, but again, these important topics are beyond the scope of this Article.
But for the matters at hand, it is necessary to consider an examination of the regulatory process as looking at “the role of politics and the role of the law,” as Dean Daniel Rodriguez so aptly stated.266Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 Wash. U. L.Q. 1, 47 (1994). Within the political-legal structure, the focus here is on the criminal-agency tie, and there are many dimensions when examining agency regulation and criminal punishment at the same table. The use of civil penalties is applauded by some as a contrast to the criminal process in that it can remove imprisonment and reduce the resulting criminal stigma to individuals and entities.267Darryl K. Brown, Criminal Law’s Unfortunate Triumph over Administrative Law, 7 J.L. Econ. & Pol’y 657, 660 (2011) (stating that reduction of criminal law could be achieved by accepting the civil penalties of the regulatory system instead of charging matters of regulation criminally). There are strong arguments for use of civil penalties as accomplishing deterrence without the social harms and collateral consequences that might occur with imposing a criminal penalty.268See Frances A. Allen, supra note 43, at 739–40 (addressing the stigma and morality of criminal sanctions that increase their social cost as compared to civil sanctions); John Hasnas, The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1329, 1329 (2009) (discussing the problems with corporate criminal liability). On the other side, however, the expressive function of billboarding conduct as improper is argued as the best method and something only achieved through a criminal indictment and conviction.269See Gregory M. Gilchrist, The Expressive Cost of Corporate Immunity, 64 Hastings L.J. 1, 47–48 (2012) (discussing the expressive cost of not criminalizing conduct); see also Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv. L. Rev. 413, 419–20 (1999) (discussing the expressive theory of punishment). These two perspectives, along with a laissez faire approach of elimination of government oversight, letting the market self-regulate, are often debated.270Some of the proposed deregulation has been criticized. See, e.g., Juliet Eilperin & Brady Dennis, Trump Promised His Mileage Standards Would Make Cars Cheaper and Safer. New Documents Raise Doubts About that., Wash. Post (Jan. 23, 2020, 6:30 AM), https://www.washingtonpost.com/climate-environment/2020/01/23/trump-vowed-his-mileage-standards-would-make-cars-cheaper-safer-new-documents-raise-doubts-about-that/ (discussing controversy over the proposed Safer Affordable Fuel Efficient (SAFE) Vehicles Rule). But looking beyond these questions and focusing on the symbiotic but distinctive roles played in the criminal and civil systems offers a political stage for curtailing criminal misconduct.
2. Examples of reduction of agency regulation
Examples of the reduction of agency regulations present a stark contrast to the growth of federal criminal statutes, and this deregulation has been explosive in certain specific areas, namely the environmental and financial sectors. But these two areas are not alone in feeling the effects of reduced agency regulation.271See Belton & Graham, supra note 237, at 27 (discussing non-environmental proposed deregulation in agency regulations from the Departments of Education, Food and Drug Administration, Labor, Transportation, Agriculture, and Veterans Administration); see also Emily Holden, Enforcement of Food and Drug Safety Regulations Nosedives Under Trump, The Guardian (July 2, 2019, 12:34 PM), https://www.theguardian.com/us-news/2019/jul/02/enforcement-food-drug-safety-regulations-trump (discussing a 33% decrease in the issuing of warning letters under the Trump Administration). But see Candelario Saldana, Another Tragedy Reminds us that the LGBTQ+ Community Continues to Be Discriminated: A Call to Completely End the FDA’s Ban on Homosexual Blood Donations, OUTside Influence (June 12, 2019), at 2, https://www.equaljusticeworks.org/wp-content/uploads/2019/05/OUTside-Influence-Spring-2019-v3.pdf [https://perma.cc/X3NP-DAWC] (pointing out the discriminatory nature of the FDA’s regulation prohibiting gay men from donating blood and calling for its end).
a. Environmental agency deregulation
According to reports, it has been contended that the environmental sector, one of the major areas subject to deregulation under the Trump Administration,272Environmental Protections on the Chopping Block, Env’t Integrity Project, https://environmentalintegrity.org/trump-watch-epa/regulatory-rollbacks [https://perma.cc/8EW6-65JH] (discussing some of the major environmental cutbacks including “clean water regulations, including from streams and wetland, water pollution from coal plants;” Coal Plant Waste Regulation (“Toxic Coal Ash pollution”), Clear Air Regulations (“climate change, toxic Air pollution, air pollution released during industrial malfunctions, startups, and shutdowns, greenhouse gases from power plants, air pollution from oil and gas facilities,” “smog,” “fuel efficiency standards for future cars and light trucks”)). There are also “other environmental rollbacks,” such as “methane pollution on federal lands,” “protections for streams from coal mining waste,” “mining,” “pesticides,” and “chemical plant safety rule” “reporting of natural gas emissions to EPA Database.” Id.; see also Regulatory Rollback Tracker, supra note 248 (providing information on environmental regulatory rollbacks of the Trump administration). has had one hundred environmental rules and regulations rolled back or is in the process of being deregulated as of October 2020.273Popovich et al., supra note 245. The breadth and depth of these rollbacks include areas of “air pollution and emissions,” “drilling and extraction,” “infrastructure and planning,” “animals,” “toxic substances and safety,” and “water pollution.”274Id. (citing State Energy & Env’t Impact Ctr., supra note 246). The decrease in agency regulations is not limited to extinguishing current regulations but also comes about with a decrease in new initiatives, which has happened in the Trump administration.
Some of the attempted environmental deregulatory actions have not been successful and in some instances have been met with delay. This has been in part due to both procedural and substantive failures. In some instances, such as with climate change rollbacks, courts have interceded.275Id.; see also Amanda Reilly, Court Torpedoes Trump EPA Bid to Delay Safety Standards, E&E News (Aug. 17, 2018), https://www.eenews.net/stories/1060094649 [https://perma.cc/98FR-38W7] (discussing the pushback from the courts on President Trump’s deregulatory agenda); Tony Mauro, Don’t Overturn Key Regulatory Rulings, US Solicitor Tells Supreme Court, Law.com (Feb. 26, 2019, 9:52 AM), https://www.law.com/nationallawjournal/2019/02/26/dont-overturn-key-regulatory-rulings-u-s-solicitor-tells-supreme-court, reprinted in Conn. L. Trib. (Feb. 26, 2019), https://plus.lexis.com/api/permalink/d0dfabe6-9bc0-415a-bfac-5c87222804b6/?context=1530671 (discussing the solicitor general’s role in the Kisor v. Wilkie argument). Again, the merits of this judicial response are beyond the scope of this Article.
But other changes have been implemented. For example, regulatory safety measures put into place following the 2010 Deepwater Horizon catastrophe to prevent a similar blowout were modified to loosen the safety restrictions.276See Interior Department Guts Critical Offshore Drilling Safety Protections, NRDC (May 2, 2019), https://www.nrdc.org/experts/nrdc/interior-department-guts-critical-offshore-drilling-safety-protections [https://perma.cc/WZ78-Y73K] (discussing criticism to rolling back this protection post-Deepwater Horizon); Eric Lipton, Trump Rollbacks Target Offshore Rules ‘Written with Human Blood’, N.Y. Times (Mar. 10, 2018), https://www.nytimes.com/2018/03/10/business/offshore-drilling-trump-administration.html (same). The ban on “importing sport-hunted trophies of elephants from certain African countries” was lifted.277Colin Dwyer, Trump Administration Quietly Decides—Again—to Allow Elephant Trophy Imports, Nat’l Pub. Radio (Mar. 6, 2018, 7:17 PM), https://www.npr.org/sections/thetwo-way/2018/03/06/591209422/trump-administration-quietly-decides-again-to-allow-elephant-trophy-imports; see Rachel Nuwer, U.S. Lifts Ban on Some Elephant and Lion Trophies, N.Y. Times (Mar. 7, 2018), https://www.nytimes.com/2018/03/07/science/trump-elephant-trophy-hunting.html (explaining the overturning of an agency regulations that prohibited the importation of “big-game trophies”); see also James Hohmann, The Daily 202: Trump Reversal of Elephant Trophy Ban Underscores the Need to Watch What He Does, Not What He Says, Wash. Post (Mar. 8, 2018, 9:09 AM), https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/03/08/daily-202-trump-reversal-of-elephant-trophy-ban-underscores-the-need-to-watch-what-he-does-not-what-he-says/5aa0b71a30fb047655a06b80 (discussing the change in agency position withdrawing the ban on importing elephant trophies). And in the area of coal waste, the EPA “relax[ed] rules that govern how power plants store waste from burning coal and release water containing toxic metals into nearby waterways.”278Juliet Eilperin & Brady Dennis, EPA to Scale Back Federal Rules Restricting Waste from Coal-Fired Power Plants, Wash. Post (Nov. 3, 2019, 3:25 PM), https://www.washingtonpost.com/climate-environment/2019/11/03/epa-scale-back-federal-rules-restricting-waste-coal-fired-power-plants. Other examples include changes to the Endangered Species Act regulations and the repeal of the 2015 Clean Water Rule which changed Clean Water Act regulations. See Nuwer, supra note 277 (Endangered Species Act); Environmental Protections on the Chopping Block, supra note 272 (Clean Water Act).
In some instances, the federal government, through its agencies, restricted states’ abilities to control and regulate their environmental concerns. For example, the EPA “revoke[d] California’s authority to set its own vehicle emissions standards that are more climate-protective than federal requirements.”279EPA Revokes California’s Authority to Set Climate-Protective Vehicle Emissions Standards, Colum. L. Sch.: Sabin Ctr. for Climate Change L., https://climate.law.columbia.edu/content/epa-revokes-californias-authority-set-climate-protective-vehicle-emissions-standards (last visited Jan. 30, 2021); see also Juliet Eilperin & Brady Dennis, EPA Limits States and Tribes’ Ability to Protest Pipelines and Other Energy Projects, Wash. Post (June 1, 2020, 4:03 PM), https://www.washingtonpost.com/climate-environment/2020/06/01/epa-limits-states-tribes-ability-protest-pipelines-other-energy-projects (reporting on the controversy surrounding an EPA rule that imposes deadlines on states to certify or reject federal project, arguably reducing states and tribes’ rights).
b. Financial industry rollbacks
Similar rollbacks of agency regulations can be seen in the financial sector.280See Patricia A. McCoy, Inside Job: The Assault on the Structure of the Consumer Financial Protection Bureau, 103 Minn. L. Rev. 2543, 2583 (2019) (describing the Trump Administration’s attempt to dismantle the Consumer Financial Protection Bureau). The arguments for this deregulation have included claims that “[r]egulation can stifle the creative juices in people,” and that there is a need to attract investors operating in international markets.281Anat Alon-Beck, SEC Commissioner Hester Peirce: ‘Regulation Can Stifle the Creative Juices in People’, Forbes (Jan. 13, 2020, 12:27 PM), https://www.forbes.com/sites/anatalonbeck/2020/01/13/sec-commissioner-hester-peirce-regulation-can-stifle-the-creative-juices-in-people/#7aabaadd2539. Critics also claim that the regulations have been “overly burdensome,” hindering the growth of the economy and placing community banks at a disadvantage.282Garrett J. Moore, Note, Pass or Fail? Grading the Effectiveness of Stress Tests a Decade after the Financial Crisis, 23 N.C. Banking Inst. 333, 350–52 (2019) (discussing rollbacks of Dodd-Frank).
One example is President Trump’s May 2018 signing of the EGRRCPA that modified some of the regulations from the Dodd-Frank Wall Street Reform and Consumer Protection Act283Pub. L. No. 111-203, 124 Stat. 1376. (Dodd-Frank). With claims that this would “lift burdens unnecessarily put on small and medium-sized lenders,”284Jacob Pramuk, Trump Signs the Biggest Rollback of Bank Rules Since the Financial Crisis, CNBC (May 24, 2018, 7:45 PM), https://www.cnbc.com/2018/05/24/trump-signs-bank-bill-rolling-back-some-dodd-frank-regulations.html [https://perma.cc/WPP6-TXA2]. arguments in favor of this deregulation were often focused on the EGRRCPA’s removal of regulatory requirements by lenders allowing for greater “consumer access to mortgage credit” and “expand[ing] consumer access to credit through ‘regulatory relief’ to financial services firms.”285Michael P. Malloy, Banking Law and Regulation § 1C.11 (2d. ed. 2020) (discussing the passage of the EGRRCPA). Smaller banks were relieved from some of the restrictions put in place following the financial crises of 2008.286Id. Others, however, argued that “the changes could open taxpayers to more liability if the financial system collapses . . . .”287Pramuk, supra note 284. It was also noted that removing some of the Dodd-Frank regulations would increase discrimination in mortgage lending.288Moore, supra note 282, at 351–53 (discussing rollbacks of Dodd-Frank); see also Tracy Jan, The Senate Rolls Back Rules Meant to Root out Discrimination by Mortgage Lenders, Wash. Post (Mar. 14, 2018, 9:59 PM), https://www.washingtonpost.com/news/wonk/wp/2018/03/14/the-senate-rolls-back-rules-meant-to-root-out-discrimination-by-mortgage-lenders (discussing rollbacks on lending institutions’ reporting requirements initially created to root out discrimination in mortgage lending practices). In this regard, a cost-benefit analysis may be taking a heightened role, thus limiting important considerations such as dignity and equality.
B. Agency Enforcement
One can get lost in the morass of legal scholarship discussing the causes of regulatory failures, the role of organizational structure on regulation,289Rodriguez, supra note 266, at 17–19. or public choice theory290See Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 Tex. L. Rev. 873, 873–76 (1987) (discussing the use of public choice theory in legislation). See generally Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 Colum. L. Rev. 1, 31–81 (1998) (discussing different theories used in administrative procedure). as an analyzing force for regulatory decision making. A pure economic structure that looks at costs and benefits absent transaction costs is the flavor of some analyzing the regulatory structure.291See Rodriguez, supra note 266, at 29–35 (discussing the use of the “Chicago School” theory of economics). The Coase Theorem, an outgrowth of the work of Ronald H. Coase, is sometimes at the heart of this analysis. Some have criticized this approach as not sufficiently valuing transactions costs. See, e.g., Reza Dibadj, Transaction Costs Matter, in Eleven Things They Don’t Tell You About Law & Economics: An Informal Introduction to Political Economy and Law 37 L. & Ineq. 97, 141 (2019) (taking issue with Coase analysis based upon the omission of transaction costs). Dean Daniel B. Rodriguez, in examining law and government, remarks that “[p]ositive political theory provides frameworks for thinking about the dynamics of regulatory policymaking in a system comprised of competing institutions and loci of power.”292Rodriguez, supra note 266, at 6. Additionally Professor Cass Sunstein pointed out the “paradoxes of the regulatory state” when a regulatory strategy has the opposite outcome of what was intended,293Sunstein, supra note 259, at 407 (1990). or what he calls a “self-defeating regulatory strategy.”294Id. at 412. He advocates that when the regulation fails in its goal, the answer “is not to return to a system of ‘laissez faire,’ but to learn from past failures.”295Id. at 408 (footnote omitted). One of the paradoxes he discusses is how “[o]verregulation [p]roduces [u]nderregulation,” in that an overregulated structure or one with “draconian standard[s]” may result in the agency regulators not providing the enforcement structure needed to cover the administration of the regulations.296Id. at 413–14, 416. Agency monitoring can be problematic when the agency becomes over-intrusive in acquiring information. See generally Rory Van Loo, The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance, 72 Vand. L. Rev. 1563, 1565–73 (2019) (examining regulators looking at information platforms of a company).
Some may argue that inherent in regulation is a cost, the value of which is debatable, with some arguing the need for deregulation to diminish that cost. At the center of the decision making here are politicians, specifically executive and legislative members who determine what gets regulated and more importantly the amount of funds provided to administer and enforce those regulations.
Irrespective of whatever theory one accepts, it is important to recognize the relationship between the regulation and the enforcement role.297See Sidney A. Shapiro, Administrative Law After the Counter-Reformation: Restoring Faith in Pragmatic Government, 48 U. Kan. L. Rev. 689, 698–99 (2000) (discussing “[i]nefficient and [i]neffective [r]egulation” and the need to have trust in regulators). Like criminal cases that provide extensive discretion to prosecutors,298See In re Flynn, 961 F.3d 1215, 1221 (D.C. Cir. 2020) (emphasizing the “[e]xecutive’s ‘long-settled primacy over charging decisions’” and its ability to decide not to proceed with criminal charges). agencies also have enormous discretion in their enforcement actions,299See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905, 1907 (2020) (noting that although the APA establishes a “basic presumption of judicial review” that presumption is “rebutted” if the statutes “precludes review” or if the “agency action” is within their discretion). oftentimes limited by agency financial constraints. The ability to review this decision making process, however, differs. Some argue that agencies receive less deference than found in criminal law in that the APA does not apply in the criminal context, and therefore prosecutorial discretion is not subject to the limitations found in the administrative process.300Barkow, supra note 137, at 995. Others also note that there is judicial oversight of agency decisions under the APA that permits the agency action to be held “unlawful and set aside” when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”3015 U.S.C. § 706. The reviewing court also may “compel agency action unlawfully withheld or unreasonably delayed;” and other grounds are also provided for setting aside the agency action, such as when it is “contrary to constitutional right, power, privilege, or immunity.” Id.
The role of courts in reviewing agency decisions cannot be distilled into a single principle, and one could easily get lost in the labyrinth of decisions and scholarly works that examine this area of law. In essence, courts can review a discretionary agency decision,302See Raoul Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L.J. 965, 993–1000 (1969) (discussing abuse of discretion in the APA). but success may be limited, unless, for example, there is a blanket agency policy declining enforcement.303See Jentry Lanza, Note, Agency Underenforcement as Reviewable Abdication, 112 Nw. U. L. Rev. 1171, 1176–79 (2018) (discussing the Chaney decision and whether underenforcement constitutes abdication). In Heckler v. Chaney,304470 U.S. 821 (1985). the Court considered whether the Food and Drug Administration (FDA) had acted improperly in refusing “to exercise its ‘discretion’ not to undertake certain enforcement actions” and whether this was “subject to judicial review under the Administrative Procedure Act.”305Id. at 823. Respondents in Heckler v. Chaney were prison inmates contesting the use of lethal injection drugs in capital cases, claiming that these drugs violated the Federal Food, Drug, and Cosmetic Act30652 Stat. 1040 (1938) (codified at 21 U.S.C. § 301). as not being approved for use in human executions.307470 U.S. at 823–24. The FDA refused to enforce this administrative request, claiming a difference in the scope of FDA jurisdiction and that “in any event [it] should not be exercised to interfere with this particular aspect of state criminal justice systems.”308Id. at 824. A divided panel of the Court of Appeals for the District of Columbia Circuit reversed and remanded the case back to the lower court finding that the FDA refusal was “irrational” and that there was “evidence that the FDA assumed jurisdiction over drugs used to put animals to sleep and the unapproved uses of drugs on prisoners in clinical experiments” which “could lead to a cruel and protracted death” that required the FDA “to fulfill its statutory function.” Id. at 826–27 (footnote omitted). The Court noted that its “dissenting judge expressed the view that an agency’s decision not to institute enforcement action generally is unreviewable, and that such exercises of ‘prosecutorial discretion’ presumptively fall within the APA’s exception for agency actions ‘committed to agency discretion by law.’” Id. at 827.
Writing for the Court, Justice Rehnquist focused on the “question of the extent to which determinations by the FDA not to exercise its enforcement authority over the use of drugs in interstate commerce may be judicially reviewed.”309Id. at 828. The Court held that there was a presumption that agency decisions would not be reviewable under this portion of the statute,310The Court noted the narrow exception to 5 U.S.C. § 701(a)(2) for action “committed to agency discretion.” Id. at 838 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)). except in very narrow instances. The Court stated that it was “essentially leav[ing] to Congress, and not the courts, the decision as to whether an agency’s refusal to institute proceedings should be judicially reviewable.”311Id. Justice Brennan, concurring in the decision, noted that the decision did not cover some “nonenforcement decisions,” such as when an agency “refuse[s] to enforce a regulation lawfully promulgated and still in effect.” Id. at 839 (Brennan, J., concurring). Also not covered by the decision is when “an agency flatly claims that it has no statutory jurisdiction to reach certain conduct,” “an agency engages in a pattern of nonenforcement of clear statutory language,” or “a nonenforcement decision violates constitutional rights.” Id. Justice Marshall, also concurring, wrote “that refusals to enforce, like other agency actions, are reviewable in the absence of a ‘clear and convincing’ congressional intent to the contrary, but that such refusals warrant deference when, as in this case, there is nothing to suggest that an agency with enforcement discretion has abused that discretion.” Id. at 840–41 (Marshall, J., concurring). Justice Marshall, in advocating for agency deference, recognized the importance of letting agencies have control of their policies to account for possibly having “scarce budgetary and enforcement resources.” Id. at 855.
More recently, however, in Department of Homeland Security v. Regents of the University of California,312140 S. Ct. 1891 (2020). the Court noted the differences when considering agency action that is “more than a non-enforcement policy.”313Id. at 12. Examining Deferred Action for Childhood Arrivals (DACA), the Court held that “the DACA Memorandum does not announce a passive non-enforcement policy,” as this was not a refusal to act as seen in Heckler v. Chaney, but rather the creation of a program, followed by a rescission, which therefore was an “action” that was subject to judicial review.314Id. at 11–12.
In United States v. Armstrong,315517 U.S. 456 (1996). a criminal case examining the ability of an accused to raise a selective prosecution claim and receive discovery from the government to pursue the matter, the Court referenced the Heckler v. Chaney decision in noting that “[a] selective-prosecution claim asks a court to exercise judicial power over a ‘special province’ of the Executive.”316Id. at 464. So in regard to discretionary powers, there are some similarities between the agency and criminal processes.317The obvious differences between the civil and criminal processes are apparent, with different burdens of proof—criminal requiring proof beyond a reasonable doubt and civil requiring less, as well as other constitutional considerations that accompany the individual charged in a criminal matter. Unlike criminal matters, one does not see the speedy trial right, compulsory process, right to trial by jury, right against self-incrimination, and right to counsel at the forefront in agency matters.
2. Agency ineffectiveness
In the federal agency context, there is another aspect to enforcement that is important for this discussion: agency inaction, incompetence, and/or ineffectiveness.318See, e.g., Ciara Torres-Spelliscy, The FEC Is Paralyzed. It Couldn’t Come at a Worse Time, Talking Points Memo (Sept. 24, 2019, 6:00 AM), https://talkingpointsmemo.com/cafe/the-fec-is-paralyzed-it-couldnt-come-at-a-worse-time [https://perma.cc/N5BT-XCKN] (discussing the failures at the Federal Election Commission). A failure to enforce regulations may not only be a function of deliberative action but also result from a deficiency caused by mere ineptness in handling the regulatory terrain.319Some posture this as deliberate “rulemaking misconduct.” See David Rosen, House Should Conduct Robust Oversight of Trump’s Anti-Safeguard Activities, CSS Says, Coal. for Sensible Safeguards (Feb. 11, 2019), https://sensiblesafeguards.org/press/house-should-conduct-robust-oversight-of-trumps-anti-safeguard-activities-css-says [https://perma.cc/UT4L-T556] (claiming among other items that there is “[i]mproper corporate influence over the regulatory process” and “[a]ttacks on science and evidence-based decision-making in the rulemaking process”). But agency enforcement action may have been stepped up in some areas. See Karen Sloan, $30M Gift to Yale Law Is Part of Government Probe into Foreign Funding, Conn. L. Trib. (Feb. 14, 2020, 1:00 PM), https://www.law.com/2020/02/14/30m-gift-to-yale-law-is-part-of-government-probe-into-foreign-funding (noting how the Department of Education has stepped up investigations of Harvard’s and Yale’s donations from foreign entities).
For example, Professor Lloyd Hitoshi Mayer asks whether the “Varsity Blues” college admissions scandal could have happened if there had been better IRS enforcement.320See Lloyd Hitoshi Mayer, Could a More Robust IRS Have Nipped the Varsity Blues Scandal in the Bud?, Chron. Philanthropy (Mar. 15, 2019), https://www.philanthropy.com/article/Could-a-More-Robust-IRS-Have/245904 (discussing the “yellow flags” that should have caused the IRS to investigate wrongdoing). Would a proper IRS investigation have stopped criminal activities well before many individuals were facing prosecution, well before celebrities may have participated in the activities that resulted in their indictment, and well before students across the country faced not getting into the colleges or universities of their choice because others who used fraudulent means took their slots in the admissions process?321See generally Kelly Phillips Erb, Tax Fraud a Key Role in Major College Admissions Scandal Involving Hollywood Actors, CEOs and More, Forbes (Mar. 12, 2019, 11:06 PM), https://www.forbes.com/sites/kellyphillipserb/2019/03/12/tax-fraud-a-key-role-in-major-college-admissions-scandal-which-snared-hollywood-actors-ceos–more/#1ddf1b1b51ea [https://perma.cc/YC92-W6A9]. The illegal activities that resulted in the Varsity Blues investigation came from an unrelated securities fraud case. See Aaron Katersky & Bill Hutchinson, Federal Agents Uncovered the College Admissions Scandal by Accident While Working on Unrelated Case, ABC News (Mar. 13, 2019, 10:13 PM), https://abcnews.go.com/US/live-updates-actress-lori-loughlin-face-judge-varsity/story?id=61651630 [https://perma.cc/TDE3-52ZS].
A promising approach to agency effectiveness is seen in Professor Rory Van Loo’s extensive studies showing the growth of “[m]onitoring authority” by a variety of agencies.322Rory Van Loo, Regulatory Monitors: Policing Firms in the Compliance Era, 119 Colum. L. Rev. 369, 371–81 (2019) (discussing the rise of administrative monitors and their role in the administrative framework). Backed by statutes, he notes that “[t]he laws are in place for a formidable regulatory-monitor state.”323Id. at 396. He also highlights the beneficial role that regulatory monitors serve in assisting with creation and revision of agency policy.324Id. at 419–21. Although empirical evidence provides the existence of these monitors, anecdotal evidence shows some of the deficiencies. The focus here is on the ramifications when there is a deficiency and the conduct moves from the civil to the criminal system.
For example, the failure of the SEC to recognize Bernard Madoff’s Ponzi scheme demonstrates both ineffectiveness to catch blatant misconduct and also underenforcement of agency regulations.325U.S. Sec. & Exch. Comm’n, supra note 23, at 1–2, 20–26. The 457-page August 2009 Report, titled Investigation of Failure of the SEC to Uncover Bernard Madoff’s Ponzi Scheme (Investigation Report), reviews the SEC’s failure to act on Madoff’s multi-billion dollar Ponzi scheme until December 11, 2008.326Id. at 20–26. The Investigation Report found that:
the SEC received more than ample information in the form of detailed and substantive complaints over the years to warrant a thorough and comprehensive examination and/or investigation of Bernard Madoff and BMIS for operating a Ponzi scheme, and that despite three examinations and two investigations being conducted, a through and competent investigation or examination was never performed.327Id. at 20–21.
The Investigation Report also notes that “the Enforcement staff’s investigation was much too limited.”328Id. at 37. For example, “they never verified Madoff’s purported trading with any independent third parties.”329Id. at 39. The Investigation Report further states that “[a] simple inquiry to one of several third parties could have immediately revealed the fact that Madoff was not trading in the volume he was claiming.”330Id. Had this been done, Madoff’s Ponzi scheme “could have [been] uncovered . . . well before Madoff confessed.”331Id. at 41.
Agency underenforcement is also a reoccurring problem. For example, agency scrutiny of misconduct occurring within Wells Fargo is troublesome.332See Kevin G. Hall, Regulators Danced with Wells Fargo for Years Before Penalties, McClatchy (Sept. 20, 2016, 7:10 PM), http://www.mcclatchydc.com/news/politics-government/congress/article103008152.html. As noted by one newspaper report:
Federal regulators were aware of wrongdoing at banking giant Wells Fargo & Co. as early as March 2012 and issued a string of supervisory letters ordering changes over the next three years, holding off on penalties while the creation of phony bank accounts and falsely issued credit cards to pad employee bonuses continued.333Id. One has to wonder if agency oversight could have avoided the criminal prosecution and conviction, as well as victims suffering, resulting from the prosecution of individuals following a salmonella outbreak at a peanut factory. See R. Robin McDonald, 11th Circuit Upholds Convictions in One of Nation’s Largest Criminal Food Safety Prosecutions, Daily Rep. (Jan. 26, 2018, 2:26 PM), https://plus.lexis.com/api/document?collection=legalnews&id=urn:contentItem:5RKN-B7V1-DY35-F1BN-00000-00&context=. It remains to be seen if there will be sufficient agency enforcement to provide relief from the Coronavirus Pandemic as workers file OSHA complaints calling for safety in the workplace. See Peter Whoriskey et al., Thousands of OSHA Complaints Filed Against Companies for Virus Workplace Safety Concerns, Records Show, Wash. Post (Apr. 16, 2020, 2:07 PM), https://www.washingtonpost.com/business/2020/04/16/osha-coronavirus-complaints.
Failures in agency enforcement are also seen in other areas, in some instances because of the lack of clear regulations or an inability to monitor the situation effectively.334See Jesse Eisinger & Paul Kiel, I.R.S. Tax Fraud Cases Plummet After Budget Cuts, N.Y. Times (Oct. 1, 2018), https://www.nytimes.com/2018/10/01/business/economy/irs-tax-fraud-audit.html (discussing the decrease of IRS enforcement actions and asking whether Michael Cohen and Paul Manafort’s matters would have proceeded sooner with increased regulatory monitoring). For example, in the Deepwater Horizon tragedy, the 124-page Report, Investigation of the Macondo Blowout Disaster, examining agency and other conduct, noted that “[t]his catastrophic failure appears to have resulted from multiple violations of the laws of public resource development, and its proper regulatory oversight.”335Deepwater Horizon Study Grp., supra note 24, at 5 (2011).
Some of the agency investigative function has moved into the private sector, placing the entity violating the regulation in a position to control the remedy. As opposed to an agency conducting extensive investigations rooting out corporate misconduct, it is common for the government to have a corporate entity produce its internal investigation and provide the names and conduct of wrongdoers within the entity.336See Jones & Nicholson, supra note 170, at 268 (discussing using corporations to disclose individual wrongdoers as part of their receiving a government resolution in their case). Professor John C. Coffee, Jr. goes a step further in offering what he calls a “controversial proposal” in suggesting that “because civil enforcement agencies lack the staff, budget, or experience to handle a ‘big’ case, which typically involves massive discovery, they should retain private counsel that has such experience.” John C. Coffee, Jr., Corporate Crime and Punishment: The Crisis of Underenforcement 56 (2020). When the misconduct becomes subject to criminal scrutiny, the result is often a NPA337See supra note 176. or DPA.338See supra note 177. In some instances, the DOJ may require a plea agreement as opposed to using a DPA or NPA. The Blue Bell Creameries plea is an example of when the government found regulatory violations in 2015, and the plant was closed to rectify the violations. The failure of the company to issue a recall following the 2015 listeriosis outbreak resulted in the company paying $19.35 million and the criminal charging of the former President. See Press Release, U.S. Dep’t of Just., Blue Bell Creameries Agrees to Plead Guilty and Pay $19.35 Million for Ice Cream Listeria Contamination—Former Company President Charged (May 1, 2020), https://www.justice.gov/opa/pr/blue-bell-creameries-agrees-plead-guilty-and-pay-1935-million-ice-cream-listeria. These agreements typically involve a fine to the entity and a promise by the company to correct the situation by putting in place a robust compliance program. The government also retains its right to proceed with the criminal action should there be noncompliance by the entity. The use of NPAs has also recently been adopted by the SEC in resolving agency actions.339See Jaclyn Jaeger, SEC Gets into the Non-Prosecution Agreement Act, Compliance Wk. (Jan. 24, 2011, 7:00 PM), https://www.complianceweek.com/sec-gets-into-the-non-prosecution-agreement-act/4645.article [https://perma.cc/NV88-73HM] (explaining how the SEC’s use of non-prosecution agreement could increase cooperation during investigations). Part of these negotiated settlements include putting in place a monitor to provide oversight of the compliance efforts by the company and to assure no further misconduct.340See id. (describing an increased implementation of corporate monitors from 2009 to 2010). The growth of internal investigations and monitorships can move some agency oversight into the private sector, with the costs being borne by the entity.341See generally Veronica Root, Coordinating Compliance Incentives, 102 Cornell L. Rev. 1003, 1003–04 (2017) (discussing the role of compliance programs in correcting corporate misconduct). But see Teresa Goody & Michelle Tanney, Judge Rebukes Government for Outsourcing Internal Investigation of LIBOR Rigging Scheme, JDSupra (June 28, 2019), https://www.jdsupra.com/legalnews/judge-rebukes-government-for-69266 [https://perma.cc/4X63-FQEL] (discussing the court’s ruling on the government’s indictment of individuals where the company provided the evidence through an internal investigation). The role of non-governmental individuals is also seen in the rise of qui tam and whistleblower actions that provide monetary rewards to those who offer information to the government concerning ongoing misconduct.342See, e.g., SEC and CFTC Announce Whistleblower Awards of $2 Million, KKC Blog (May 4, 2020), https://www.kkc.com/blog/sec-and-cftc-announce-whistleblower-awards-of-2-million [https://perma.cc/2R4V-3DFK].
III. Political Economy Theory and the Balance Between Criminalization and Regulation
Offered here is a sharp dichotomy between the legislative and executive approach of passing new laws and having prosecutors stretch new and existing laws, while agency regulations are being removed or underenforced. Many reasons can be offered for the difference between these two approaches. Politicians who are running for political office may feel the need to show that they are being “tough on crime.” Agencies, on the other hand, may face budget constraints keeping them from properly enforcing existing regulations, not to mention the diminishing number of regulations. Possible reasons for the differences seen here include poor funding of agencies and the fact that there may be less political capital for agency action than for passing new criminal legislation. After all, appointed agency personnel, even when receiving congressional scrutiny, are not facing an upcoming election, and these activities are seldom highlighted as key issues in the executive’s re-election.343It is also noted that Agency decision makers are not elected. See Fissell, supra note 26, at 892. Although it is possible that the disbanding of an agency related to pandemics may be a topic in the 2020 presidential election.
Whatever the rationale attributed to how criminal laws versus agency regulations are approached, it is important to recognize the unique constructs of criminalization and regulation and the necessity to look holistically at the correlation between these two bodies of law and the political structure in which they are encompassed. On a ground level, we see “parallel proceedings” with the DOJ and another agency working together on the criminal prosecution, while the agency alone may also be proceeding with a civil action.344Podgor et al., supra note 113, at 583–85. For example, the IRS and DOJ may have involvement in a criminal tax case, while the IRS may also be proceeding to secure back taxes.345Joel Cohen, When Prosecutors and Regulators ‘Double Team,’ N.Y.L.J. (Dec. 9, 2019), https://plus.lexis.com/api/document?collection=legalnews&id=urn:contentItem:5XPM-N071-DY35-F007-00000-00&context= (noting how discussions with the FBI will also include the agency regulators with the parallel investigation); see also United States v. Kordel, 397 U.S. 1, 11–13 (1970) (allowing a parallel investigation). Although there are restrictions surrounding these parallel proceedings, including a prohibition of using a civil investigation to circumvent a completed grand jury process, it is clear that there is an alliance between a specific civil agency and the DOJ’s criminal division.346See Podgor et al., supra note 113, at 601–03; see also United States v. Stringer, 535 F.3d 929, 939–40, 942 (9th Cir. 2008) (failing to disclose in an agency investigation an ongoing criminal investigation was not improper where there was no deception); United States v. Scrushy, 366 F. Supp. 2d 1134, 1139–40 (N.D. Ala. 2005) (finding impropriety when the DOJ pursued perjury charges from an SEC hearing where the defendant had been misled).
But when moving to a higher level, one that looks at policy perspective, overcriminalization and underregulation are separate constructs, with no recognition of how underregulation will exacerbate overcriminalization. Professor Rachel Barkow, focusing on the criminal system, offers useful lessons on redesigning criminal law to use some administrative law doctrines.347Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 870–74, 895–906 (2009) (discussing prosecutorial discretion and considering administrative law solutions for correcting prosecutorial overreaching). But the point of this Article is not to restructure criminal law but rather to recognize the current dichotomy between the two systems and effectuate change by having the criminal and regulatory policy joined together. As opposed to a polarized approach of calling for increased criminalization and increased regulation, or alternatively, decreased criminalization and deregulation, a moderated architecture premised on political economy offers an improved model.
Arguably one could say that the decrease in regulation has not led to an increased prosecution in, for example, the area of environmental crimes. This is true, as statistics demonstrate that for 2019, there were only 302 prosecutions, a decrease from five years ago by 9.9%, ten years ago by 38.5% and twenty years ago of 64.5%.348Fewer Criminal Prosecution of Environmental Crimes Under Trump, TRAC Reps., https://trac.syr.edu/tracreports/crim/581 [https://perma.cc/9RXD-KPBU]. This is perhaps more indicative of an entire reconfiguration of priorities within the DOJ that now highlights “violent crimes, drugs, immigration, and national security” as its focus.349Attorney General William P. Barr, Remarks at the U.S. Attorney’s Conference (June 26, 2019), https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-opening-remarks-us-attorneys-conference [https://perma.cc/57VB-9UP2] (noting DOJ priorities). A decrease in the number of prosecutions does not, however, minimize the fact that overcriminalization can still occur when misconduct causes a major catastrophe and prosecutions are the reactive response.350Press Release, U.S. Dep’t of Just., U.S. Att’ys Off. Dist. of Mass., Columbia Gas Agrees to Plead Guilty in Connection with Sept. 2018 Gas Explosions in Merrimack Valley (Feb. 26, 2020), https://www.justice.gov/usao-ma/pr/columbia-gas-agrees-plead-guilty-connection-september-2018-gas-explosions-merrimack [https://perma.cc/M4RP-TQDL]. In this circumstance, one moves from minimal regulatory oversight directly to criminal prosecution. The failure to have had a proactive approach here does not bode well for the environment, for victims, or for society. More importantly, refocusing energies into agency action will provide the mens rea for the federal crimes that are eventually prosecuted. After all, the agency will alert the individuals to the misconduct that if uncorrected will result in criminal prosecution.
Some may argue that financial constraints can only offer partial agency enforcement and oversight as opposed to full review of all activities. The uncertainty of being regulated may in fact produce some compliance as the fear of getting caught may cause closer adherence to the regulation.351See, e.g., Leandra Lederman & Ted Sichelman, Enforcement as Substance in Tax Compliance, 70 Wash. & Lee L. Rev. 1679, 1681–89 (2013) (discussing how measured enforcement of tax law can assist with compliance). But over time this economic approach fails as catastrophes can still occur absent robust agency enforcement. Others may contend that the errors lie exclusively within the agency that uses data-based “scorecards,” which are a “sub-species of cost-benefit analysis,” in testing government regulation.352Richard W. Parker, Grading the Government, 70 U. Chi. L. Rev. 1345, 1348, 1354–55 (2003). Also it has been argued that the stealth use of science strategies by the agency working with the White House to advocate for deregulation lacks validity and that this should be handled by scientific agency staff within the agencies.353Thomas O. McGarity & Wendy E. Wagner, Deregulation Using Stealth “Science” Strategies, 68 Duke L.J. 1719, 1745–47 (2019); see also Brad Plumer & Coral Davenport, Science Under Attack: How Trump Is Sidelining Researchers and Their Work, N.Y. Times (Dec. 28, 2019), https://www.nytimes.com/2019/12/28/climate/trump-administration-war-on-science.html (explaining the reduction of scientists’ influence in regulatory decisions). These points, most likely accurate, support the need to provide a universal platform to consider prosecution and regulation together.
By examining government prosecution and agency regulation holistically, there is less likelihood that the passage from the agency to becoming a criminal case will be as abrupt as it currently exists. It is also less likely to be a simple reactive model in proceeding criminally when the conduct rises to the highest of levels and is more likely to provide notice to perpetrators of what constitutes misconduct, thus mitigating the damages to victims.354Unlike many common law crimes, white collar crimes seldom have lesser included offenses. See generally Miriam H. Baer, Sorting out White-Collar Crime, 97 Tex. L. Rev. 225, 225 (2018) (discussing how fraud offenses are put under a “single statutory umbrella”). After all, if Bernard Madoff’s Ponzi scheme had been caught earlier then fewer victims would have fallen prey to his criminal conduct.
Political economy theory recognizes the importance of collaboration as opposed to competition to achieve maximum efficiency.355See generally Sandeep Vaheesan, Competition Can Be Socially Corrosive and Wasteful, in Eleven Things They Don’t Tell You About Law & Economics: An Informal Introduction to Political Economy and Law, 37 L. & Ineq. 143, 143–47 (2019) (discussing the negative effects of competition). It also recognizes the need to move beyond mere costs and benefits and to examine not only the transaction costs, but also that “economic and political life are inextricably intertwined.”356Frank Pasquale, Introduction to Eleven Things They Don’t Tell You About Law and Economics: An Informal Introduction to Political Economy and Law, 37 L. & Ineq. 97, 98–100 (2019) (discussing different aspects of political economy); see also Jedediah Britton-Purdy et al., Law & Political Economy: Toward a Manifesto, LPE Project Blog (Nov. 6, 2017), https://lpeblog.org/2017/11/06/law-and-political-economy-toward-a-manifesto [https://perma.cc/HJA2-PFK2] (discussing the essence of law and political economy theory). As opposed to looking at criminal harms from a monetary perspective,357See Jennifer Taub, Big Dirty Money: The Shocking Injustice and Unseen Cost of White Collar Crime 15–16 (2020) (stressing the importance of not measuring harm in economic terms). But see Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169, 198–99 (1968) (looking at harm in terms of financial losses). human dignity plays a prominent role.
Looking at overcriminalization and underregulation with a political economy lens allows one to infuse the inherent inequality in society into the mix. It recognizes the role of politics in framing criminal justice and regulation, something seen repeatedly in the approaches to prosecutions by different presidential administrations, as well as in the reduction of administrative regulations. Looking only at a one-dimensional cost-benefit analysis that reduces regulations to save government funds fails to provide a morally sound approach, not to mention one that achieves effectiveness when examined against the eventual increase in criminal activity.
The late-Professor William J. Stuntz aptly noted that “criminal law does not drive criminal punishment.”358William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 506–07 (2001) (discussing the role of legislators and prosecutors in the criminal justice system). He stated that “[t]he definition of crimes and defenses plays a different and much smaller role in the allocation of criminal punishment than we usually suppose. In general, the role it plays is to empower prosecutors, who are the criminal justice system’s real lawmakers.”359Id. at 506. With increased statutes as choices for the prosecutorial power and loose statutory language that can be manipulated to proceed against unknowing individuals, the criminal system has become an albatross to a dysfunctional legal process.
When coupled with failing and overlooked administrative oversight, one can easily move from administrative failure to criminal indictment. Society becomes burdened with increased incarceration and befuddled defendants who failed to see themselves as perpetrators of criminal conduct. The unnoticed misconduct in the agency regulatory realm becomes lost in the norms of usual business until a catastrophe happens or it reaches the public, and criminal action is necessitated as the only viable way to appease society.
Overcriminalization has its failings in placing undue power in the hands of the government. But equally offensive is the government’s failure to use its power in a proactive constructive manner by placing resources into increased agency oversight as opposed to the eventual prosecution. The glamour of the indictment and courtroom plea or trial may provide a superior news item for deterrence, but it loses the importance of achieving the punishment theory goal when the victims and perpetrators both suffer harsher consequences than they would have if the agency action had successfully rooted out the misconduct sooner. Lost also is the government’s failure to prioritize dignity and inclusion as key components in eradicating misconduct, letting disadvantaged communities suffer. Looking beyond mere costs and benefits, to include political economy theory as a component offers a construct that fosters collaboration and allows for a higher efficiency in maximizing resources to the benefit of society.