Fighting Overcriminalization in Federal Regulations

The United States is drastically overregulated. The Code of Federal Regulations contains over 48,000 sections, stretching over 175,000 pages-- far more than any citizen can possibly read, let alone fully understand. Worse, many carry potential criminal penalties for violations. The situation has become so dire that no one--likely including those charged with enforcing our criminal laws at the Department of Justice--knows how many separate criminal offenses are contained in the Code of Federal Regulations, with at least one source estimating hundreds of thousands of such crimes. Many of these regulatory crimes are ``strict liability'' offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime. This status quo is absurd and unjust. It allows the executive branch to write the law, in addition to executing it. That situation can lend itself to abuse and

It is the policy of the United States that: (a) Criminal enforcement of criminal regulatory offenses is disfavored. (b) Prosecution of criminal regulatory offenses is most appropriate for persons who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm. Prosecutions of criminal regulatory offenses should focus on matters where a putative defendant is alleged to have known his conduct was unlawful. (c) Strict liability offenses are ``generally disfavored.'' United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and

For purposes of this order: (a) ``Agency'' has the meaning given to ``Executive agency'' in section 105 of title 5, United States Code; (b) ``Criminal regulatory offense'' means a Federal regulation that is enforceable by a criminal penalty; and (c) ``Mens rea'' means the state of mind that by law must be proven to convict a particular defendant of a particular crime. [[Page 20364]]

(a) Within 365 days of the date of this order, the head of each agency, in consultation with the Attorney General, shall provide to the Director of the Office of Management and Budget (OMB) a report containing: (i) a list of all criminal regulatory offenses enforceable by the agency or the Department of Justice; and (ii) for each criminal regulatory offense identified in subsection (a)(i) of this section, the range of potential criminal penalties for a violation and the applicable mens rea standard for the criminal regulatory offense. (b) At the same time the head of each agency provides to the Director of OMB the report required by subsection (a) of this section, the agency head shall publicly post the report on its agency webpage. (c) The head of each agency shall periodically, but not less than once a year, update the report described in subsection (a) of this section. (d) Criminal

(a) Following issuance of this order, all future notices of proposed rulemaking (NPRMs) and final rules published in the Federal Register, the violation of which may constitute criminal regulatory offenses, should include a statement identifying that the rule or proposed rule is a criminal regulatory offense and the authorizing statute. Agencies should draft this statement in consultation with the Department of Justice. (b) The regulatory text of all NPRMs and final rules with criminal consequences published in the Federal Register after the date of this order should explicitly state a mens rea requirement for each element of a criminal regulatory offense, accompanied by citations to the relevant provisions of the authorizing statute. (c) Strict liability criminal regulatory offenses are disfavored. Any proposed or final criminal regulatory offense that includes a strict liability mens

(a) The head of each agency, in consultation with the Attorney General, shall examine the agency's statutory authorities and determine whether there is authority to adopt a background mens rea standard for criminal regulatory offenses that applies unless a specific regulation states an alternative mens rea. (b) Within 30 days of the submission of the report described in section 4(a) of this order, the head of each agency, in consultation with the Attorney General, shall submit a report to the Director of OMB summarizing the information submitted under section 4(a) of this order and assessing whether the applicable mens rea standards for criminal regulatory offenses enforced by the agency are appropriate. If consistent with the statutory authorities identified pursuant to the review described in subsection (a) of this section, the report should present a plan for changing the applicable

Within 45 days of the date of this order, and in consultation with the Attorney General, [[Page 20365]] each agency should publish guidance in the Federal Register describing its plan to address criminally liable regulatory offenses. Each agency's guidance should make clear that when the agency is deciding whether to refer alleged violations of criminal regulatory offenses to the Department of Justice, the agency should consider factors such as: (a) the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense; (b) the potential gain to the putative defendant that could result from the offense; (c) whether the putative defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue; and (d) evidence, if any is available, of the putative defendant's general awareness of the unlawfulness of his conduct as well as

Nothing in this order shall apply to the enforcement of the immigration laws or regulations promulgated to implement such laws, nor shall it apply to the enforcement of laws or regulations related to national security or defense.