Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law

Growing numbers of federal crimes, driven largely by the immense number of administrative rules that are criminally enforceable, have created a serious problem. The typical prosecution may be justified and the typical prosecutor may be well behaved, but changes in the law have increased the risk of prosecutors bringing charges against people who have done nothing wrong, or nothing seriously wrong—nothing that traditionally would have been thought of as criminal—and selecting the number and nature of charges in a way that puts extraordinary pressure on defendants to agree to a plea bargain. Courts do not need to require actual knowledge of criminality to make the “fair notice” concept meaningful, but they do need to recognize that without knowledge or culpable ignorance “fair notice” is a myth. By the same token, Congress should place clear limits on the power it gives administrative officials to create criminally-enforceable rules.

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