Why Democrats aren’t serious about overcriminalization

Now that the parties have chosen their presidential candidates for the November elections, it’s time to take a closer look at their platforms. On the issue of overcriminalization, in particular, the two parties are worlds apart.

Let’s start with the Democratic platform, which focuses mainly on issues that apply to all criminals. Among other things the Democrats want to change policing policy, reform the prisons, reduce sentences, and eliminate the death penalty. All that is typical fare for Democrats.

But the Democrats don’t care a bit about the more foundational issue of who is labeled a “criminal” in the first place. Their platform says nothing about the average American who accidentally stumbles over an arcane regulatory tripwire, makes a simple mistake of fact, or commits the “crime” of holding an unlicensed croquet game in a national park.

They totally ignore the rapidly-growing tangle of federal criminal laws and the maze of criminally-enforceable administrative regulations, which are estimated to number in the hundreds of thousands. The vast majority of these criminal offenses have nothing to do with universally-acknowledged offenses against people or property, and many are so vague or complex that they are meaningless without expensive legal advice. The Democrats’ failure to even acknowledge the problem is a serious oversight.

The Republican platform, by contrast, is balanced and serious. It criticizes Congress’s “recklessness” in expanding the criminal law without restraint and denounces as “intolerable” the practice of letting unelected bureaucrats define new crimes. Instead of doubling down on the status quo, Republicans are calling for a bipartisan commission to review the federal criminal code for outdated or obsolete criminal offenses, as well as demanding reform to ensure that existing laws have adequate criminal intent requirements. None of these measures is a panacea, of course, but all are excellent starting points.

Why did the Democrats miss the opportunity to support serious reform of the overcriminalization problem? Easy. The status quo leaves unbelievable power in the hands of federal prosecutors, who, under a Democratic president, would answer to Democratic political appointees. They don’t want to relinquish that kind of power, at least not yet.

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No, they want more. The Democratic platform declares support for “stronger criminal laws” in the financial arena, which in practice usually means ever-broader and ever-vaguer laws that empower federal prosecutors to decide which conduct deserves to be punished without making meaningful improvements to the financial system. (This is also a textbook example of how political posturing leads to overcriminalization problems in the first place.

And amazingly, as if the Democratic platform weren’t bad enough already, it actually gets worse. This year’s platform demands that the government investigate energy companies for dissenting from liberal climate-change orthodoxy, which they mischaracterize as “fraud” on investors. Calls for criminal investigation of political adversaries are nothing new, of course (Republicans demanded prosecution of Hillary Clinton for reckless mishandling of national security secrets), but they don’t typically involve prosecuting the hallmarks of a free society – disagreement and debate – as federal crimes.

Frankly, the Democrats should be embarrassed. Their platform repudiates the legacy of Franklin D. Roosevelt’s Attorney General, Robert H. Jackson, who famously warned about “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” But whereas Jackson sought to prevent his generation of Democratic officials from politicizing and personalizing law enforcement, this generation apparently took his warning as inspiration.

If the temptation is not resisted, Jackson said, unscrupulous prosecutors could target individuals and groups for the supposed “crime” of disagreeing with the majority. And this, it seems, is exactly what the platform calls for.

Despite these stark differences, there is one limited area of agreement. Both parties support reform of civil asset forfeiture, a form of property seizure that some revenue-hungry officials have abused at the expense of law-abiding citizens. That suggests that perhaps, just perhaps, the Democrats will be open to broader reform in the future.

But on the whole, only one party really “gets” the overcriminalization problem right now. Whereas the Republican platform addresses overcriminalization seriously, the Democratic platform remains mired in the status quo. Only time will tell whether Democrats will be willing to put aside their partisan power game for the common good.

Jonathan Keim is Senior Counsel at the Judicial Crisis Network.

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