August 8th, 2018 42 Minute Read

Report by James R. Copland, Rafael A. Mangual, Manhattan Institute

Building on previous MI studies, this paper lays out the contours of America’s state-level overcriminalization problem. Today, state statutory and regulatory codes overflow with criminal offenses. Most of these offenses involve conduct that is not intuitively wrong. Most could not be easily discoverable by individuals or small businesses that lack teams of specialized lawyers. Many have weak or absent criminal-intent requirements, leaving unsuspecting and well-meaning citizens vulnerable to prosecution even when acting in good faith. Many are never reviewed by legislators accountable to the voting public. And the volume of state crimes is expanding and growing less manageable with each passing year.

The proposed model legislation and executive order in this paper offer a framework for state lawmakers to address the overcriminalization problem. These policies:

1. Protect well-meaning individuals by requiring a showing of criminal intent absent a clear legislative command to the contrary, and affording defendants the ability to assert a good-faith mistake-of-law defense in cases not involving public order and safety
2. Make the body of criminal law clearer and easier to navigate, by recodifying criminal laws and paring outdated, duplicative, and unnecessary crimes from the books
3. Reconnect criminal lawmaking with the legislative process, restoring political accountability for the growth of criminal law and potentially slowing the rate at which criminally enforceable regulatory offenses are created.

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