The National Trial Lawyers
Expertise 2020
Expertise 2016
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Over-criminalizationThere are problems with our criminal codes. Of course, these problems keep Crime Incorporated in business, so there seems to be little incentive to fix it. No one has bothered to control or fix overlapping laws. Congress has passed more criminal laws in the last 30 years than in the entire history of our country. Historically, crimes have been defined by the states, not the federal government. But now, we have a number of criminal offenses that are covered by both state law and federal law. Yikes.

One disturbing trend in over-criminalization involves the creation of crimes that do not require mens rea. Normally, crimes require guilty knowledge (mens rea) so that it’s not enough to simply “do something”, you must do something intentionally with guilty knowledge. But over the past 30 years, the mens rea requirements in criminal statutes have been watered down or eliminated completely (See Florida Statute 893.101, for example). In the corporate context, we’re seeing criminal cases for CEO’s, not because they’ve done something wrong, but because someone else in the company has done so, and they should have known about it. Again, a watered down knowledge requirement.

And let’s not forget that we now have more mandatory minimum sentences than ever. This is the legislature’s way of intruding upon the province of judges, and it can have devastating results. Minimum mandatory sentences basically throw justice out the window, in favor of a sentence predetermined by the legislature. Did you know that under Florida law, a defendant may seek the removal of a judge that tells a defendant what his sentence will be before hearing the facts (a judge may not “pre-judge” the facts)? But with mandatory minimum sentences, the legislature somehow gets away with it. Hum.

The injustice of minimum mandatory sentences is most evident in trafficking in oxycodone cases, where as little as 8 pills can land a person in prison for a minimum of 3 years! Trafficking charges are also another example of how the government has overlapping laws governing the same conduct. A trafficking charge can consist of a drug purchase, a sale and delivery, or simple possession–all of which are covered by other laws.

Well, more crimes = more arrests, more court rooms, more bail money, more jail money, more law enforcement money, more judges, more prosecutors, more defense attorneys. More tax payer money that could be spent on other things–so who will stand up to the machine and say, enough is enough?

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