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Heritage Foundation & Ed Meese Are Leading the Charge Against "Overcriminilization"

By Evie Litwok
December 14, 2011

The Heritage Foundation lists “overcriminalization” as one issue it studies. Ed Meese, former attorney general for Ronald Reagan, works on this issue. In the December 14, 2011 article in the Wall Street Journal, entitled ‘Criminal Code is Overgrown, Legal Experts Tell Panel”, Meese is quoted as saying in addition to the 4500 criminal statutes, there are “over 300,000 other regulations that don’t appear in the federal code but nevertheless carry essentially criminal penalties including prison”.

There are too many laws and too many opportunities for prosecutors to abuse their authority. The combination of 300,000 regulations, 4500 laws give prosecutors too many ways to convict.

Adding to this problem is the power of the prosecutors. They and they alone determine what a crime is and who to prosecute. Crimes are, in some cases, determined by “criminal intent”. The standard for determining “criminal intent” is left up to prosecutors. Our legal system is supposed to punish only those who intentionally break the law. The line between “criminal intent” and “unintentionally committing a crime” has been has become blurred as prosecutors decide the issue of “intent”.

The problem of determining “criminal intent” is not new for the justice system. Supreme Court Justice Robert H. Jackson discussed the role of intent in 1951. He said, “The ancient requirement of a culpable state of mind” means conviction only occurs when there is “an evil-meaning mind with an evil-doing hand”.

In Harvey Silverglate’s book, “Three Felonies a Day”, he discusses Justice Jackson in his introduction. According to Silverglate, Jackson was concerned about the issue of “criminal intent” when he served as attorney general to President Franklin Delano Roosevelt in 1940.Justice Jackson was also concerned about excessive prosecutorial zeal.

Justice Jackson stated, “if a prosecutor is obliged to choose his cases, it follows that he can choose his defendants” and “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 (Silvergate)”.

More and more people are being prosecuted for “what a prosecutor thinks and tells juries is in the mind of the accused”. Changing the very definition of “criminal intent” and stretching its definition has allowed an increased number of incarcerations.

Little can be done without an extraordinary effort by the American public

We are facing huge obstacles;

- The number of laws is too large; 4500 laws and at least 300,000 regulations

- Prosecutors determine who is guilty of “criminal intent” according to their own standards

- Prosecutors are picking defendants and are accountable to no one

- Congress does not have the issue of “the overcriminalization of America” on

either a front or a back burner


Until there is a broad coalition from the right and the left, from individuals across this nation, no change will be made. Prosecutors will use their unlimited powers to continue to convict many innocent people. Everyone working on these issues must come together to create a public outcry for the immediate reductions of laws and limiting the powers of the prosecutor.

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