As part of an ongoing series, the Heritage Center for Legal and Judicial Studies periodically identifies a “Bill of the Week” that relates to the problem of overcriminalization in America.
Our Bill of the Week segment usually highlights a piece of legislation that, due to its underlying policies, exacerbate the problem of overcriminalization. But this week we’re faced with a matter that shows why form must follow function.
No reasonable person would recommend that the Agriculture, Nutrition, and Forestry Committee send a bill to the Senate floor restructuring our present and future relationship with the government inAfghanistanwithout first receiving the opinion of the Senate Foreign Relations and Armed Services Committees. We have committed the lives of American soldiers and a sizeable portion of our treasury to the Afghanistan War, and what happens in that country is more important than what happens in a national forest in one of the Western States. The Foreign Relations and Armed Services Committees should be the Senate’s experts on foreign policy and military affairs, so it would not make sense to adopt policy without first giving those committees an important role in the making of it. So why has it become regular practice for Congress to allow such outrageous results when it passes laws that add or modify criminal offenses or penalties?
This week, two similar bills, S. 2516: Food and Drug Administration Safety and Innovation Act and H.R. 5651: Food and Drug Administration Reform Act of 2012, are both quickly moving through their respective houses of Congress. Both bills would create new criminal offenses and increase criminal penalties for criminal laws already on the books. The maximum terms of imprisonment range from 20 years to life imprisonment, and criminal fines can reach to up to $4,000,000.
The problem is that because both bills concern the Food, Drug, and Cosmetic Act, they have been sent to the Senate Health, Education, Labor and Pensions Committee and the House Energy and Commerce Committee, respectively. In the Senate, the bill passed through the committee without any written report explaining why an American should potentially serve out the rest of his life in prison for a new crime. The legislation has been placed on the Senate Legislative Calendar and will be brought up for a vote.
How can it be that criminal laws, which can deprive someone of liberty, sometimes for quite a period of time, are not considered by the presumed Congressional experts that make up the Judiciary Committees of the Senate and House?
In the 2010 Without Intent report, The Heritage Foundation and the National Association of Criminal Defense Lawyers proposed that Congress would benefit from five reforms that would help curb overcriminalization at the federal level. Among those was a suggestion to impose automatic sequential referral for all legislation that would affect criminal offenses and penalties. Sequential referral is a procedure that sends proposed legislation to several congressional committees in order for members to consider it before the legislation is voted on by Congress.
This reform is not a magic bullet that would suddenly eliminate overcriminalization. Members of the Judiciary Committees would still need carefully to consider each bill. (They could look to the Criminal Law Checklist for Federal Legislators for guidance on how to do so.) Statistics from the report, however, suggest that mandatory consideration by each body’s Judiciary Committee could reduce the presence of new or modified criminal provisions in unrelated bills, slow the pace of regulatory criminalization, assure that traditional protections are included in new criminal provisions, and encourage a more principled and deliberate approach to federal criminal law, hopefully halting or slowing the ever-growing increase in the hodgepodge of criminal laws that currently exists.
Congress has inserted itself into virtually every aspect of the lives of average Americans. The committee system encourages members of Congress to focus on and become experts in particular areas of the law in order best to serve the public. Why not ensure that the right people – the people who are assigned to become experts in criminal law – actually view all proposed new criminal laws? We turn to cardiologists for heart problem, ophthalmologists for eye diseases, and orthopedic surgeons for torn ACLs. Shouldn’t we demand that our elected representatives on Capitol Hill use the same type of good judgment and rely on the opinions of their own experts?
