Norman Reimer is executive director of the National Association of Criminal Defense Lawyers (NACDL). He sat down with us to discuss his organization’s efforts to combat overcriminalization.
How did NACDL become involved with overcriminalization?
The National Association of Criminal Defense Lawyers has always opposed the overly expansive use of criminal laws by states and the federal government for social and regulatory control. Criminal laws are now detached from fundamental and moral wrongs such as theft, assault, and murder. NACDL began to address overcriminalization in the white-collar enforcement areas about eight years ago.
The problem of overcriminalization went mostly unnoticed until white-collar prosecutions dramatically increased. People were largely not concerned with non-violent individuals being prosecuted until the government began a post-Enron approach to the criminal law. More people are paying attention now that criminal laws are becoming more pervasive and more difficult to understand.
It is imperative that we attack this issue from every point. We need to change the way laws are drafted. Statutes should adequately describe prohibited conduct and should have adequate mens rea requirements.
What is the biggest success you have seen in the overcriminalization field?
The fact that we are having this conversation. That NACDL, Heritage, the ACLU, the Chamber of Commerce, and groups across the ideological spectrum agree that this is a problem represents a huge success. We have blown up the partisan divide in this area. This is a huge step forward. That is what it takes to get things done. People must come together—politicians on both sides.
To get a feel for the breadth of the coalition, we have posted a series of videos on our website that feature leaders from across the ideological spectrum describing the problem of overcriminalization. I urge your readers to visit www.nacdl.org/overcrim/. [See video above.]
The power to prosecute, the power to brand a person a criminal and strip them of their liberty is the most awesome power, short of warfare. It must be used with restraint.
With a broad range of people across the political spectrum agreeing on this issue, what stands in the way of real reform?
The politics of pandering. The allure that harsh penalties and new crimes are the answer to every problem. When there is a new drug or a new environmental crisis, the easy answer is to make a new criminal law. It is easy to propose new crimes because it looks like there is no cost associated with it, but there is a huge societal cost. There are more than an estimated 4,000 criminal statues and an additional estimated 300,000 criminal regulations.
There are 2.3 million people in prison in the United States. Whether you look at the raw number or per capita, that is higher than any other country on earth. We are not a nation of bad people. Politicians need to stop reflexively engaging in this demagoguery.
We need to ask the right questions, like “Are we investing our resources and our energy in the right area?” We should require Congress and the states to assess the societal and economic costs associated with every proposed criminal law.
What do you see as the biggest threat to individual liberty?
It is when we are so far down the road that people are unaware that they have committed a crime. Let me tell you by way of an example.
Lawrence Lewis, an African-American man, grew up poor. He worked his way up from the bottom to be a janitorial supervisor. He was proud that despite the difficult conditions he grew up in, he had a completely clean criminal record. While he was working at a nursing home, the toilets started backing up. In institutions that provide geriatric care, there is a high risk of infection that can threaten the health of the residents. To avoid this, he rerouted the sewage into a storm drain. What he didn’t know was that the drain eventually led to protected waters. He was convicted of violating the Clean Water Act.
When the criminal law is used in this fashion, it becomes untethered from its moral anchor. Inadvertent wrongdoing should never be the subject of criminal prosecution.
What do you see on the horizon for overcriminalization?
It is hard to predict. I think we will be able to reform discovery practices. I think that gradually we will turn things around as awareness and understanding about the nature and extent of overcriminalization grows. Overcriminalization was the subject of two hearings in Congress. When you have two politicians like Bobby Scott (D–VA) and Louie Gohmert (R–TX) who oppose each other on almost everything else, both pledge to work on overcriminalization, it gives me high hopes that we will make progress. One thing that I can guarantee is that NACDL will remain in this fight for as long as it takes to restore balance and restraint in our criminal law.