Reduce Federal Crimes and Give Judges Flexibility

The criminal law is the most potent “lever through which government brings power to bear on the individual citizen.” Not  only can a criminal conviction lead to imprisonment and the loss of other rights, including the right to vote, it forever brands those who are convicted as criminals — a stigma that can be difficult, if not impossible, to overcome. Because of these serious consequences, the power to define crimes and to prosecute and jail people for committing them must be exercised with utmost care. Unfortunately, for all its virtues, the criminal justice system does not always exercise the care that it should.

This essay focuses on three vital areas of concern: overcriminalization, harsh mandatory minimum sentences, and the demise of jury trials. These problems pervade our criminal justice system at large, but there are practical ways to address them at the federal level. Congress should pass laws that would eliminate redundant crimes and convert regulatory crimes into civil offenses, take steps to give judges more sentencing flexibility, and require prosecutors to disclose material exculpatory evidence during plea negotiations.

The first problem is the proliferation of federal crimes, what is often termed overcriminalization. Since the late 19th century, the number of federal offenses has risen steadily, accelerating during the New Deal and virtually exploding since the 1970s. The last time a rigorous effort was undertaken to tally the number was over 30 years ago in 1982. The task took two years and produced, at best, an educated estimate of approximately 3,000 federal criminal offenses. No one really knows what the real number is today. We do know, however, that Congress created more than 450 new crimes from 2000 to 2007, a rate of more than one a week. Assuming a one-a-week rate over the last 32 years, the number of federal criminal offenses would now exceed 4,600. But even that does not capture the full scope of our overcriminalization epidemic because many federal regulations carry criminal penalties. If those regulations are included in the tally, then the total number of federal offenses could reach a staggering 300,000.

Congress and the president should work together — perhaps through a commission — to scrub the entire United States Code, eliminating crimes that are redundant and converting regulatory crimes into civil offenses. But the political incentives to criminalize disfavored conduct — whether it is inherently evil or not — could prove too great to generate the support needed to undertake this Herculean task.

The place to start is with incremental reforms aimed at mitigating the harmful effects of overcriminalization. Congress should begin by requiring that all criminal offenses are put into one title of the Code, Title 18, or if that proves too difficult, Congress can enact a law that prohibits criminal liability on the basis of any statute that is not codified or otherwise cross-referenced in Title 18. Having thousands of criminal laws scattered throughout the entire Code works an intolerable hardship on the public akin to Caligula posting his laws high up to make them difficult for the public to see.

To ameliorate the effect of redundant or overlapping criminal laws, Congress should also pass legislation requiring courts to presume that a single criminal act or transaction should be treated as one crime subject to one punishment, even if the act or transaction is punishable under multiple statutes. And to mitigate the consequences of criminalizing regulatory offenses, Congress should repeal criminal penalties for violations of agency regulations. At the very least, it should require that any new regulations carrying criminal penalties be approved by Congress and the president. Perhaps most importantly, Congress should enact legislation that requires the government to prove the defendant knowingly violated the law — or that, at least, allows a mistake of law defense — for certain classes of crimes that have no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the government has criminalized non-blameworthy conduct for regulatory purposes, ignorance of the law should be a valid defense to criminal liability.

The second problem is the ratcheting up of mandatory minimum sentences over the last several decades. Although there is nothing wrong in principle with mandatory minimums, they must be carefully calibrated to ensure that no circumstances could justify a lesser sentence for the crime charged. The current draconian mandatory minimum sentences sometimes result in sentencing outcomes that neither fit the crime nor the perpetrator’s unique circumstances. This is especially true for nonviolent drug offenders.

Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ineffective relative to the public expense and human costs of years-long incarceration. According to a 2012 Government Accountability Office report, the inmate population in the federal Bureau of Prisons (BOP) increased by more than 400 percent since the late 1980s because of lengthening sentences. The number of drug offenders in federal and state prisons increased 13-fold during that time period. As of February 2015, nearly half — 49 percent — of BOP inmates were sentenced for drug crimes. This has contributed to overcrowding. BOP prisons now house 39 percent more inmates than their capacity. It is far from clear whether this dramatic increase in incarceration for drug crimes has had enough of an effect on property and violent crime rates to justify the human toll of more incarceration.

Given the undeniable costs and dubious benefits of mass, long-term incarceration of nonviolent drug offenders, Congress should take steps to give judges more flexibility in sentencing those offenders. The Smarter Sentencing Act of 2015, which was introduced by Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.), and of which I am an original cosponsor, is a significant stride in that direction. Among other things, the bill lowers minimum sentences, cutting them in half, to give judges more flexibility in determining the appropriate sentence based on the unique facts and circumstances of each case.

The third problem, which is exacerbated by the first two, is the demise of jury trials. Plea bargaining has become the norm in our criminal justice system, while the constitutional right to a jury trial — which the Founders understood to be a bulwark against tyranny — is now rarely exercised. Contrary to popular perceptions, we no longer have a system where a jury determines a defendant’s guilt or innocence in a public trial. In 2013, 97 percent of all federal criminal charges that were not dismissed were resolved through plea bargains; less than 3 percent went to trial.

In this plea-bargaining system, prosecutors have extraordinary power, nudging both judges and juries out of the truth-seeking process. The prosecutor is now the proverbial judge, jury, and executioner in the mine-run of cases. Often armed with an extensive menu of crimes, each with their own sentencing ranges, federal prosecutors can wield their discretionary charging power to great effect by threatening the most serious charges that theoretically (if not realistically) can be proved. If the accused succumbs to the threat and pleads guilty, which often happens, the prosecutor agrees to bring lesser or entirely different charges that carry a lower sentencing range.

Given the risks involved in turning down a plea offer, it is not unheard of for people to plead guilty to crimes they never committed. Of the 1,428 legally acknowledged exonerations recorded by the National Registry of Exonerations since 1989, 151 (or roughly 10 percent) involved false guilty pleas. It is estimated that between 2 and 8 percent of convicted felons who have pleaded guilty are actually innocent. In a federal prison population of 218,000 — the number at the end of fiscal year 2011 — where 97 percent pleaded guilty, that means that anywhere from 4,229 to 16,916 people could be imprisoned for crimes they did not commit.

The plea-bargaining system is premised on the assumption that there is relatively equal bargaining power between the accused and the state. Nothing, of course, could be further from the truth. Mitigating the coercive effect of the plea-bargaining process will require empowering the defense. And one way to do that is to reduce the informational asymmetry between prosecutors and defense counsel. Plea offers are often foisted upon the accused before the defense has had enough time to investigate the facts, and the longer the investigation takes, the less generous the plea off may become. Congress should pass legislation that requires the government — whether constitutionally required or not — to disclose material exculpatory evidence before the accused enters into any plea agreement. This reform will reduce the risk of false guilty pleas by helping ensure that the accused is better informed before sealing his or her fate.

Not all criminal justice reforms benefit criminal defendants. I, for instance, strongly supported Sen. Kirsten Gillibrand’s (D-N.Y.) Military Justice Improvement Act, which would have transferred charging authority for many non-military-related crimes, including sexual assault, from unit commanders to independent military prosecutors — a change that may well make it more likely for charges to be brought against defendants. Such a reform will better serve the interests of justice. Likewise, the reforms discussed in this essay would serve the interests of justice by giving much-needed protection to individuals — many of whom are poor or minorities — who find themselves in the crosshairs of federal prosecutors.

Click here to read the entire book, Solutions: American Leaders Speak Out On Criminal Justice.