Inside NACDL: Overcriminalization: Bipartisan Hypocrisy

By Norman L. Reimer, Former NACDL Executive Director

May 2021 issue of The Champion

Overcriminalization, and its inevitable consequence, mass incarceration, are the hallmark of America’s failed criminal legal system. Mindless resort to the assertion of the state’s prosecutorial power to address every real or imagined problem is a phenomenon that just will not end. Politicians of all stripes simply cannot resist the temptation to impose criminal penalties in a pointless and cruel effort to regulate all manner of disfavored social, economic, or personal conduct. NACDL continues to highlight the perils of overcriminalization in every way possible, and this column has addressed the issue with considerable regularity.¹

Seldom has the bipartisan nature of the problem been more evident than it is today. Three examples demonstrate that despite the bipartisan trend to promote criminal justice reform, when pet issues arise, the reflexive resort to overly expansive use of penal provisions remains business as usual.

Take, for example, the recent assault on ballot access. It is generally beyond the ken of NACDL’s portfolio to wade into policy issues unrelated to criminal justice, but when the criminal law is invoked in furtherance of a political objective it must be exposed. Georgia’s recently enacted Election Integrity Act contains numerous textbook examples of overcriminalization. The law creates eight new criminal offenses, nearly all of which make it a crime to engage in activity that is not only routine and commonplace but also is entirely harmless and innocuous. The law makes it a crime to do the following:

  1. Handle a completed absentee ballot application.²

2. Open a sealed absentee ballot envelope if not the voter or other authorized person.³

3. Allow a person to see a ballot being marked, even if at home and having done so voluntarily.⁴

4. Give water or food to a voter waiting in line.⁵

5. Accept water or food as a voter waiting in line.⁶

6. Intentionally observe another person casting a ballot, unless a child or providing authorized assistance.⁷

7. Photograph a person marking a ballot or photographing the ballot itself.⁸

8. Accept a ballot from a voter for delivery or return to the board of registrars except in specific circumstances, such as a voter who is hospitalized or in jail.⁹

NACDL has recently adopted a statement decrying this brazen use of criminal penalties to further a dubious political objective.¹⁰ The new offenses criminalize many types of everyday behavior that are harmless and unobjectionable, and they clearly lack adequate criminal intent (mens rea) requirements. Criminalization of such routine and innocuous actions should never be permitted in a free society.

It is indeed ironic that the proponents of this massive use of penal provisions are supporters of the previous national administration. Setting aside all the controversy that surrounded that administration and the highly controversial use of executive power in so many areas, one executive order brought the promise of long overdue reform. In the waning hours of the administration, President Donald J. Trump issued an executive order entitled Protecting Americans From Overcriminalization Through Regulatory Reform.¹¹ This order advanced an objective long sought by NACDL: it provided much-needed direction to executive branch agencies that are empowered to enact criminal provisions. Its laudable purpose was to provide that agency-enacted criminal provisions “should be clearly written so that all Americans can understand what is prohibited and act accordingly” and to “ensure that [Americans] have notice of potential criminal liability for violations of regulations.” The order further provided that agencies should avoid strict liability offenses where a person can be held criminally liable even if unaware that a law has been violated and should provide explicit mens rea standards for any new offenses.

One would think that these commonsense provisions would be entirely uncontroversial. One would assume that anyone philosophically aligned with the promulgation of this order would be appalled at the criminal provisions in the Georgia election statute. Conversely, one would also assume that anyone outraged at the Georgia statute would look at the overcriminalization executive order and say, “It’s about time.” But unfortunately, when it comes to the use and abuse of criminal provisions, hypocrisy and politics go together like bread and butter. And so it was that buried in a raft of other recissions of Trump-era executive orders, on May 14, 2021, President Joseph R. Biden Jr. issued an “Executive Order on the Revocation of Certain Presidential Actions and Technical Amendment,” which revoked the previous order. It was done without comment, without explanation, and without any attempt to justify an order that simply called for clarity, notice, and adequate intent requirements as agencies go about the business of criminalizing all manner of behavior.

NACDL may not win the daily battles to wean the nation off its addiction to criminalization, but rest assured that this Association will always stand on principle as these issues arise. In that regard, in the coming months, NACDL will publish a major report on the overcriminalization implication of the spate of new legislation to curtail abortion — a third area in which political hypocrisy is on full display. This report will show that these new laws may usher in a new wave of criminalization and government overreaching that could rival the dismal War on Drugs if the Supreme Court lets them stand. Stay tuned.

Notes

1. Overcriminalization has been discussed in The Champion in the following Norman L. Reimer columns: Without Intent’ — NACDL Make the Case for Reasonable Lawmaking, May 2010; When It Comes to Overcriminalization, Prosecutorial Discretion Is for the Birds, September/October 2012; A Lamentable Example of Overcriminalization: HIV Criminalization, December 2013; Whether Fish or Fowl — Prosecutorial Overreach Is a Poisonous Aspect of Overcriminalization, September 2014; Overcriminalization and the Trial Penalty: Gaining Traction One Case — and One Justice — at a Time, January/February 2015; Changing the Rules of the House: A Tangible Step to Stem the Tide of Overcriminalization, March 2015; Overcriminalization: It May Be Complex or Simple, But It Is Always Wrong, September 2015; and NACDL’s Relentless Efforts to End Overcriminalization, June 2016.

2. Election Integrity Act of 2021, 2021 GA. LAWS ACT 9 (S.B. 202), lines 979–81.

3. Id. at lines 1305–09.

4. Id. at lines 1339, 1347–49.

5. Id. at lines 1873–75.

6. Id. at lines 1873–75.

7. Id. at lines 2449–54.

8. Id. at lines 2456–62.

9. Id. at lines 2442–44.

10. Read the statement at nacdl.org/2021GABallotCriminalization.

11. Executive Order 13980, https://www.federalregister.gov/documents/2021/01/22/2021-01645/protecting-americans-from-overcriminalization-through-regulatory-reform.

About the Author

Norman L. Reimer is NACDL’s former Executive Director and past Publisher of The Champion.

© 2021, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.

National Association of Criminal Defense Lawyers