Philadelphia partner Scott Coffina wrote an article for the Legal Intelligencer titled, “Our Overcriminalized Society and Methods for Ensuring Justice.”
Scott notes that the recent suicide of Reddit co-founder Aaron Swartz in the face of an aggressive computer-hacking prosecution has ignited a debate about overcriminalization of the law and prosecutorial overreach in its enforcement.
He says the sheer number of federal criminal laws in the United States is “staggering,” with one study indicating there are at least 4,000 separate federal criminal laws, with another 10,000 to 30,000 regulations that can be enforced criminally.
Scott references one study that suggests the Dodd-Frank bill, alone, contains more than two dozen new or expanded criminal provisions, many of which “have watered down mens rea requirements that easily can become traps for the unwary.” He notes there is a “litany of recent examples of questionable prosecutions” and discusses specific examples in detail.
While he admits such cases are the minority, he emphasizes that “the system should not permit prosecutors to target a person first (for political or any other motivation), and then to find a crime with which to charge him or her; with the number of crimes on the books, they surely will find something that arguably applies.”
Scott notes that it “would be tough to scale back our overcriminalized society,” but now that debate has been ignited, the discussion “should reflect the essence of justice and due process, namely that the laws be clear and provide adequate notice of what they proscribes, and that criminal prosecution and punishment be reserved for those who are truly criminally culpable.”